remanded L-1A Case: Gas And Auto Service

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U.S. Department of Homeland Security 
20 Massachusetts Ave., N.W . Rm. A3042 
Washington. DC 20529 
U. S. Citizenship 
and Immigration 
Services 
File: ' Office: TEXAS SERVICE CENTER Date: 
Petition: Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(15)(L) of the Immigration 
and Nationality Act, 8 U.S.C. 5 1101(a)(15)(L) 
IN BEHALF OF PETITIONER: 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to 
the office that originally decided your case. Any further inquiry must be made to that office. 
obert P. Wiemann, Director 
Appeals Office 
Page 2 
DISCUSSION: The nonimmigrant petition was initially approved by the Director, Texas Service Center. 
Upon further review of the record, the director issued a notice of intent to revoke the approval and ultimately 
revoked the approval of the petition. The matter is now before the Administrative Appeals Office (AAO) on 
appeal. The director's decision will be withdrawn and the matter remanded to the director for further 
consideration. 
The petitioner filed this nonimmigrant petition seeking to employ the beneficiary as its President as an L-I A 
nonimmigrant intracompany transferee pursuant to section 10 1 (a)(l 5)(L) of the Immigration and Nationality 
Act (the Act), 8 U.S.C. tj 1 101(a)(15)(L). The petitioner is a corporation organized in the State of Florida that 
o erates a as and automobile service station. The petitioner claims that it is a subsidiary of- 
- located in Brazil. The director approved the nonimmigrant petition on September 9, 
2002. 
Based on further review of the record, the director issued a notice of intent to revoke the approval on March 
31, 2004. The director determined that, due to the fact that the petitioner operates under a franchise 
agreement, the petitioner failed to show that it has control over its operations such that it is a qualifying 
organization. The petitioner was given 30 days in which to submit evidence in rebuttal of the stated ground 
for revocation and in support of the petition. 
Counsel for the petitioner submitted correspondence dated April 6, 2004, in which he noted that the director 
issued two separate notices of intent to revoke approval of the instant petition.' Counsel provided a copy of 
correspondence dated March 24, 2004 as a response to the notices. Counsel submitted a copy of the 
petitioner's franchise agreement, further description of the beneficiary's duties, and documentation to show 
that the petitioner is an affiliate of the foreign entity due to common ownership by the same individual. 
The director revoked the approval of the petition on June 1, 2004. The director determined that the 
petitioner's franchise agreement limits its control over its operations. The director stated that "[tlhis clearly 
demonstrates the petitioner although able to establish ownership, clearly is not able to establish control over 
the enterprise. The petitioner has failed to establish the foreign company and the U.S. petitioner meet the 
definition of qualifying organizations." 
On appeal, counsel submits a statement on Form I-290B addressing the ground for revocation as follows: 
There is full discretion over the corporate matters in the hands of the Petitioner. - 
representative only appeared 4 time[s] last year, talking mainly about promotion of the 
station. This is not any "effective control" over any business. There are many L-I 
beneficiaries as executives over franchise operations which form the U.S. business 
' Counsel references two Notices of Intent to Revoke that Citizenship and Immigration Services (CIS) issued 
on March 18, 2004 and March 3 1, 2004. While counsel claims that both Notices of Intent to Revoke were 
issued in connection with the present petition, the notice dated March 18, 2004 pertained to a separate petition 
(SRC-03-225-50224) involving the same petitioner and beneficiary. The petition in connection with the 
March 18, 2004 notice was revoked in May 2004, and the petitioner has not appealed the revocation decision. 
undertaken. If a franchise surrenders or fails it is the day to day work of the executives and 
managers that cause[s] it, not the few hours that the franchisor spends on it every 13 weeks. 
To establish eligibility for the L-1 nonimmigrant visa classification, the petitioner must meet the criteria 
outlined in section 101(a)(15)(L) of the Act. Specifically, a qualifying organization must have employed the 
beneficiary in a qualifying managerial or executive capacity, or in a specialized knowledge capacity, for one 
continuous year within three years preceding the beneficiary's application for admission into the United 
States. In addition, the beneficiary must seek to enter the United States temporarily to continue rendering his 
or her services to the same employer or a subsidiary or affiliate thereof in a managerial, executive, or 
specialized knowledge capacity. 
Under CIS regulations, the approval of an L-IA petition may be revoked on notice under six specific 
circumstances. 8 C.F.R. 5 214,2(1)(9)(iii)(A). To properly revoke the approval of a petition, the director must 
issue a notice of intent to revoke that contains a detailed statement of the grounds for the revocation and the 
time period allowed for rebuttal. 8 C.F.R. 3 2 14.2(1)(9)(iii)(B). 
In the present matter, the director provided a detailed statement of the grounds for the revocation but did not 
cite to the specific provision of the regulations as a basis for the revocation. The director reviewed the 
rebuttal evidence and concluded that, though the petitioner indicated that it has a qualifying relationship with 
the foreign entity, the franchise agreement under which it operates restricts its authority over its business 
activity to the point that it does not have control of its company. Upon review, the director revoked the 
approval on the basis of 8 C.F.R. 5 214.2(1)(9)(iii)(A)(5): "Approval of the petition involved gross error." 
The term "gross error" is not defined by the regulations or statute. Furthermore, although the term has a 
juristic ring to it, "gross error" is not a commonly used legal term and has no basis in jurisprudence. See 
Black's Law Dictionary 562, 710 (7th Ed. 1999)(defining the types of legal "error" and legal terms using 
"gross" without citing "gross error"). The word "gross" is commonly defined first as "unmitigated in any 
way: UTTER," as in "gross negligence." Webster's IINew College Dictionary 491 (2001). 
As the term "gross error" was created by regulation, it is most instructive to examine the comments that 
accompanied the publication of the rule in the Federal Register. The term "gross error" was first used in the 
regulations relating to the revocation of a nonimmigrant L-l petition. In the 1986 proposed rule, an L-1 
revocation would be permitted if the approval had been "improvidently granted." 5 1 Fed. Reg. 1859 1, 18598 
(May 21, 1986)(Proposed Rule). After receiving comments that expressed concern that the phrase 
"improvidently granted" might be given a broader interpretation than intended, the agency changed the final 
rule to use the phrase "gross error." 52 Fed. Reg. 5738, 5749 (Feb. 26, 1987)(Final Rule). As an example of 
gross error in the L-l context, the drafter of the regulation stated: 
This provision was intended to correct situations where there was gross error in approval of 
the petition. For example, after a petition has been approved, it may later be determined that 
a qualifying relationship did not exist between the United States and the foreign entity which 
employed the beneficiary abroad. 
Id. In the context of the L-1 nonimmigrant classification, the phrase "qualifying relationship" is a 
fundamental requirement for visa eligibility and is defined by the regulation. See 8 C.F.R. 3 214.2(1)(l)(ii)(G). 
However, this element of eligibility is not a simple determination or one where there is always a obvious 
answer. To determine whether a qualifying relationship exists between United States and foreign entities, 
CIS must examine the elements of "ownership and control," whether by de jure or de facto control, by 
reviewing corporate stock certificates, a stock certificate registry or ledger, corporate bylaws, the minutes of 
relevant annual shareholder meetings, proxy agreements, and any other relevant documentation. See Matter 
of Church Scientology Internalional, 19 I&N Dec. 593 (BIA 1988); see also Matter of Siemens Medical 
Systems, Inc., 19 I&N Dec. 362 (BIA 1986); Matter of Hughes, 18 I&N Dec. 289 (Comm. 1982). As 
authorized by Congress, CIS is charged with the authority to make this determination based on the 
implementing regulations. See generally section 2 14 of the Act, 8 U.S.C. 3 1 184. 
Accordingly, upon review of the regulatory history and the common usage of the term, the AAO interprets the 
term "gross error" to be an unmitigated or absolute error, such as an approval that was granted contrary to the 
requirements stated in the statute or regulations. Regardless of whether there can be debate as to the legal 
determination of eligibility, any approval that CIS determines to have been approved contrary to law must be 
considered an unmitigated error, and therefore a "gross error." This view of "gross error" is consistent with 
the example provided in the Federal Register. See 52 Fed. Reg. at 5749. 
Upon review, the petitioner has rebutted and overcome the director's ground for revocation. Upon review of 
the petitioner's franchise agreement, it is evident that the petitioner maintains ultimate control over its 
operations. While the agreement does impose requirements regarding how the petitioner conducts business 
with its gas and service station, control remains with the petitioner, as evidenced by the following paragraph 
in the agreement: 
LESSEE'S INDEPENDENCE. Lessee is an independent businessperson, and nothing in 
this Lease may be construed as reserving to Lessor any right to exercise any control, or to 
direct any respect the conduct or management of, Lessee's business or operations conducted 
pursuant to this Lease; but the entire control and direction of such business and operations are 
and will remain in Lessee, subject only to Lessee's performance of the obligations of this 
Lease. 
Further, the petitioner is free to engage in other business ventures not covered by the agreement. 
Accordingly, the petitioner has established that the franchise agreement does not undermine a finding that it is 
a qualifying organization. Further, the petitioner has submitted sufficient evidence to show that it and the 
foreign entity are owned and controlled by the same individual, rendering them affiliates. See 8 C.F.R. 
3 214.2(1)(1)(ii)(L)(l>. Thus, the petitioner has rebutted the director's ground for revocation, and the director's 
decision to revoke approval of the petition will be withdrawn. 
However, upon review of the evidence of record, the petitioner failed to establish that the beneficiary would 
be employed by the petitioner in a primarily managerial or executive capacity, as required by 8 C.F.R. 
5 2 14.2(1)(3)(ii). 
Page 5 
The regulation at 8 C.F.R. $ 214.2(1)(3) states that an individual petition filed on Form 1-129 shall be 
accompanied by: 
(i) Evidence that the petitioner and the organization which employed or will employ the 
alien are qualifying organizations as defined in paragraph (I)(l)(ii)(G) of this section. 
(ii) Evidence that the alien will be employed in an executive, managerial, or specialized 
knowledge capacity, including a detailed description of the services to be performed. 
(iii) Evidence that the alien has at least one continuous year of full time employment 
abroad with a qualifying organization within the three years preceding the filing of 
the petition. 
(iv) Evidence that the alien's prior year of employment abroad was in a position that was 
managerial, executive or involved specialized knowledge and that the alien's prior 
education, training, and employment qualifies himlher to perform the intended 
services in the United States; however, the work in the United States need not be the 
same work which the alien performed abroad. 
(v) If the petition indicates that the beneficiary is coming to the United States as a manager 
or executive to open or to be employed in a new office in the United States, the 
petitioner shall submit evidence that: 
(A) Sufficient physical premises to house the new office have been secured; 
(B) The beneficiary has been employed for one continuous year in the three year 
period preceding the filing of the petition in an executive or managerial capacity 
and that the proposed employment involved executive or managerial authority 
over the new operation; and 
(C) The intended United States operation, within one year of the approval of the 
petition, will support an executive or managerial position as defined in 
paragraphs (l)(l)(ii)(B) or (C) of this section, supported by information 
regarding: 
(I) The proposed nature of the office describing the scope of the entity, its 
organizational structure, and its financial goals; 
(2) The size of the United States investment and the financial ability of the 
foreign entity to remunerate the beneficiary and to commence doing business in 
the United States; and 
(3) The organizational structure of the foreign entity. 
Section 101(a)(44)(A) of the Act, 8 U.S.C. fj 1101(a)(44)(A), defines the term "managerial capacity" as an 
assignment within an organization in which the employee primarily: 
(i) manages the organization, or a department, subdivision, function, or component of 
the organization; 
(ii) supervises and controls the work of other supervisory, professional, or managerial 
employees, or manages an essential function within the organization, or a department 
or subdivision of the organization; 
(iii) if another employee or other employees are directly supervised, has the authority to 
hire and fire or recommend those as well as other personnel actions (such as 
promotion and leave authorization), or if no other employee is directly supervised, 
functions at a senior level within the organizational hierarchy or with respect to the 
function managed; and 
(iv) exercises discretion over the day to day operations of the activity or function for 
which the employee has authority. A first line supervisor is not considered to be 
acting in a managerial capacity merely by virtue of the supervisor's supervisory 
duties unless the employees supervised are professional. 
Section 10 I(a)(44)(B) of the Act, 8 U.S.C. $ 1 101(a)(44)(B), defines the term "executive capacity" as an 
assignment within an organization in which the employee primarily: 
(i) directs the management of the organization or a major component or function of the 
organization; 
(ii) establishes the goals and policies of the organization, component, or function; 
(iii) exercises wide latitude in discretionary decision making; and 
(iv) receives only general supervision or direction from higher level executives, the board 
of directors, or stockholders of the organization. 
In a letter submitted with the initial petition on June 25, 2002, the petitioner described the beneficiary's 
prospective duties in the United States as follows: 
[The beneficiary] is being transferred to the United States to fill the position of President and 
Director of [the petitioner]. [The beneficiary] will exercise general discretion authority over 
the Financial, Administrative and Commercial departments of the subsidiary and the detailed 
description of her duties at this initial stage of the Corporation is delineated as follows: 
hire and fire of employees, train individuals to fill out positions involving supervision 
(1 0% of her time); 
decide on the company's budget allocation of funds coming from the foreign parent 
company and 
determine and establish the company's goals, marketing plans and strategies (20% of 
her time); 
direct and coordinate the day-to-day activities of the subordinate managers and 
supervisors, as well as 
indirect management of staff (50% of her time); 
creation and implementation of internal norms and procedures for the daily operation 
and 
indirect supervision of accounts payable and receivable (20% of her time). 
[The beneficiary] will have full discretion over the corporate matters and businesses of [the 
petitioner]; she will also have discretionary authority over the negotiations of contracts with 
foreign and local companies; research other prospective markets to be approached; she will 
have autonomous control over and will exercise wide latitude in decision making, 
establishing the most advantageous courses of action for the successful management of our 
international development activities. 
When examining the executive or managerial capacity of the beneficiary, the AAO will look first to the 
petitioner's description of the job duties. See 8 C.F.R. tj 214.2(1)(3)(ii). The petitioner's description of the job 
duties must clearly describe the duties to be performed by the beneficiary and indicate whether such duties are 
either in an executive or managerial capacity. Id. The petitioner must specifically state whether the 
beneficiary is primarily employed in a managerial or executive capacity. 
In the instant matter, the petitioner represents that the beneficiary's duties will include significant supervisory 
responsibility over subordinate employees, including managers and supervisors. However, the petitioner has 
failed to provide any documentation to show that it in fact employs individuals in addition to the beneficiary. 
Such documentation should include: (I) a line and block organizational chart for the petitioner that clearly 
shows the beneficiary's position and that of all employees within the petitioner's divisions; (2) a description of 
the duties of each of the beneficiary's subordinate employees, including an indication of any managerial or 
supervisory authority they exercise; (3) copies of the petitioner's IRS Forms 941, Employer's Quarterly 
Federal Tax Return, and State quarterly reports for the second and third quarters of 2002, including 
attachments that list all individuals employed by the petitioner; (4) copies of the petitioner's payroll summary, 
W-2's, and W-3's evidencing wages paid to employees; (5) an explanation of the educational background of 
each of the beneficiary's subordinates, including copies of diplomas, if applicable; (6) an accounting of the 
number of hours each of the petitioner's employees work each week; and (7) any further documentation that 
the director deems necessary. 
Without the above-listed documentation, CIS cannot determine the level of supervisory authority held by the 
beneficiary, or whether the petitioner employs sufficient staff that will relieve the beneficiary from 
performing primarily non-managerial and non-executive duties. Further, without this evidence CIS cannot 
assess the accuracy of the job description provided for the beneficiary. Going on record without supporting 
documentary evidence is not sufficient for purposes of meeting the burden of proof in these proceedings. 
Matter of Sufici, 22 I&N Dec. 158, 165 (Comm. 1998) (citing Matter of Treasure Craft of California, 14 
I&N Dec. 190 (Reg. Comm. 1972)). 
Although the beneficiary is not required to supervise personnel, if it is claimed that her duties involve 
supervising employees, the petitioner must establish that the subordinate employees are supervisory, 
professional, or managerial. See 5 10 I (a)(44)(A)(ii) of the Act. 
In evaluating whether the beneficiary manages professional employees, the AAO must evaluate whether the 
subordinate positions require a baccalaureate degree as a minimum for entry into the field of endeavor. 
Section 101(a)(32) of the Act, 8 U.S.C. 5 1101(a)(32), states that "[tlhe term profession shall include but not 
be limited to architects, engineers, lawyers, physicians, surgeons, and teachers in elementary or secondary 
schools, colleges, academies, or seminaries." The term "profession" contemplates knowledge or learning, not 
merely skill, of an advanced type in a given field gained by a prolonged course of specialized instruction and 
study of at least baccalaureate level, which is a realistic prerequisite to entry into the particular field of 
endeavor. Matter of Sea, 19 I&N Dec. 81 7 (Comm. 1988); Matter of Ling, 13 I&N Dec. 35 (R.C. 1968); 
Matter of Shin, 1 1 I&N Dec. 686 (D.D. 1966). 
Therefore, the AAO must focus on the level of education required by the position, rather than the degree held 
by a subordinate employee. The possession of a bachelor's degree by a subordinate employee does not 
automatically lead to the conclusion that an employee is employed in a professional capacity as that term is 
defined above. 
The definitions of executive and managerial capacity have two parts. First, the petitioner must show that the 
beneficiary performs the high level responsibilities that are specified in the definitions. Second, the petitioner 
must prove that the beneficiary primarily performs these specified responsibilities and does not spend a 
majority of his or her time on day-to-day functions. Champion World, Inc. v. INS, 940 F.2d 1533 (Table), 
1991 WL 144470 (9th Cir. July 30, 1991). In light of the fact that the petitioner has failed to show that it 
employs workers that are subordinate to the beneficiary, the job description for the beneficiary suggests that 
she devotes significant time to non-qualifying duties. For example, the petitioner stated that the beneficiary 
will indirectly supervise accounts payable and receivable. Yet, without subordinates, it appears that the 
beneficiary will perform the day-to-day clerical tasks of maintaining these accounts. The petitioner indicated 
that the beneficiary will commit 50 percent of her time to "indirect management of staff." Yet, without 
subordinate employees, it is unclear what tasks the beneficiary will perform during this period. The petitioner 
must submit sufficient evidence to show that non-qualifying duties do not constitute the majority of the 
beneficiary's time. 
It is further noted that the petitioner has failed to provide a clear business plan that discusses "the scope of the 
entity, its organizational structure, and its financial goals." 8 C.F.R. 8 214.2(1)(3)(v)(C)(I). Additionally, the 
petitioner has not submitted evidence that "[s]ufficient physical premises to house the new office have been 
secured." 8 C.F.R. 5 214.2(1)(3)(v)(A). The petitioner submitted a lease for its claimed gas station dated 
November 22, 1999, yet it was executed by the previous owner, not the petitioner. Thus, it does not serve as 
evidence that the petitioner had secured sufficient premises as of the date the petition was filed. 
In this matter, the petitioner has overcome the specific ground for the director's revocation. However, 
additional grounds for ineligibility exists, and further evidence is required in order to establish that the 
petitioner met the requirements for L-1A classification as of the date of filing the petition. The director is 
instructed to issue a new notice of intent to revoke approval of the petition addressing the issues discussed above, 
and any other evidence she deems necessary. 
ORDER: The decision of the director dated June 1, 2004 is withdrawn. The matter is remanded for 
further action and consideration consistent with the above discussion and entry of a new decision.