remanded L-1A Case: Grocery

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PUBLICCOpy
U.S. Department of Homeland Seturity
20 Massachusetts Ave. N.W., Rm. 3000
Washington, DC 20529
u.s.Citizenship
and Immigration
Services
File: EAC 07 024 51564 Office: VERMONT SERVICE CENTER Date: NOV 06 2007
INRE: Petitioner:
Beneficiary:
Petition: Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(15)(L) of the Immigration
and Nationality Act, 8 U.S.C. § 1101(a)(15)(L)
ON 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, C ef
Ifdministrative Appeals Office
www.uscis.gov
EAC 07 024 51564
Page 2
DISCUSSION: The Director, Vermont Service Center, denied the petition for a nonimmigrant visa. The
matter is now before the Administrative Appeals Office (AAO) on appeal. The AAO will withdraw the
director's decision and remand the petition to the director for further action and entry of a new decision.
The petitioner seeks to extend the temporary employment of its vice president as an L-IA nonimmigrant
intracompany transferee pursuant to section 101(a)(15)(L) of the Immigration and Nationality Act (the Act), 8
U.S.C. § 1101(a)(l5)(L). The petitioner, a Missouri corporation established in 1994, operates a grocery store.
It claims to have a qualifying relationship with Comercial Lido c.A., located in Venezuela. The petitioner has
employed the beneficiary in L-IA status since December 2005 and now seeks to extend his status for three
additional years.
The director denied the petition, concluding that the petitioner had failed to establish that the U.S. entity
would employ the beneficiary in a primarily managerial or executive capacity.
The petitioner subsequently filed an appeal. The director declined to treat the appeal as a motion and
forwarded the appeal to the AAO for review. On appeal, counsel for the petitioner contends that the
beneficiary will be employed in a primarily executive capacity. Counsel objects to the director's conclusion
that the petitioner's business does not require the services of a bona fide manager, and emphasizes that the
company is neither "small" nor "new" as suggested by the director. Counsel also objects to the director's
finding that the beneficiary's offered salary of $30,000 is "incongruous" with a managerial or executive
position. Finally, counsel asserts that the petitioning company has ample staff to carry out the managerial and
non-managerial day-to-day operations of the business. Counsel submits a brief and additional evidence in
support of the appeal.
To establish eligibility for the L-I 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 ina managerial, executive, or
specialized knowledge capacity.
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 (l)(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 ofthe 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.
EAC 07 02451564
Page 3
(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 him/her 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.
The sole issue addressed by the director is whether the petitioner established that the beneficiary would be
employed in a primarily managerial or executive capacity under the extended petition.
Section 101(a)(44)(A) of the Act, 8 U.S.c. § 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 101(a)(44)(B) of the Act, 8 U.S.c. § 1101(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.
EAC 07 024 51564
Page 4
The nonimmigrant petition was filed on November 2, 2006. The petitioner indicated on Form 1-129 that the
beneficiary would continue to be employed as vice president of the U.S. c~mpany, which operates a grocery
store and claims to have eleven employees. In an attachment to Form 1-129, the petitioner provided the
following description of the beneficiary's duties:
The beneficiary is employed in the executive capacity of the Vice President of [the
petitioning company] for the past year. His job duties including ensuring that [the petitioner]
successfully adheres, either via the Beneficiary or the delegation of said duties, to the
business purposes listed in Article Ten of the Articles of Incorporation (see attached).
In addition, to briefly summarize the Beneficiary's other duties; they are as follows, to-wit:
a. Reports to the President of [the foreign entity] regarding all matters, especially
opportunities for expansion and growth;
b. Controls and oversees the General Manager and guides the General Manager in
resolving difficult decision-making problems;
c. Reviews reports from the General Manager which discuss the supply and demand of
items purchased or are to be purchased for [the petitioner] and decides which items are
to be purchased or discontinued;
d. Reviews the buying and selling of products with vendors and customers;
e. Reviews reports from the General Manager, Manager of Quality Assurance, and Produce
Manager to ensure they are complying with inventory and purchasing standards;
f. Reviews reports from the Controller to ensure that the bookkeeping, which includes
payroll, inventory, and accounts receivables and payables, conforms with company
standards;
g. Assists the President by preparing acquisitions and dispositions of large corporate assets,
and ensuring that the corporation is complying with all city, state and federal code and
tax regulations;
h. Advises and teaches General Manager, Manager of Quality Assurance, and Produce
Manager in international marketing and business;
1. Ensures that each department has fulfilled the requirement that all company policies and
standards are implemented and taught to all employees; and
J. Prepares and presents new goals, policies and incentive programs for the employees and
the corporation as a whole to increase productivity, quality and success.
The director issued a request for evidence on December 11, 2006, in which he requested: (l) an organizational
chart for the U.S. entity which clearly specifies the beneficiary's proposed subordinates; and (2) a complete
position description for the beneficiary's proposed subordinates and educational credentials for each
employee. The director advised that the initial evidence did not establish that the beneficiary would function
at a senior level in an organizational hierarchy, or that he would supervise and control the work of
supervisory, professional or managerial staff.
In response to the director's request for evidence received on February 5, 2007, the petitioner provided an
organizational chart which shows the beneficiary as vice president, reporting to the president of the U.S.
EAC 07 024 51564
Page 5
company. The beneficiary's direct subordinate is a general manager, who is depicted as supefVlsmg a
controller, a quality assurance manager, a produce manager, two cashier/stockers and two cashiers. The chart
shows that the produce manager supervises one "employee/stocker." The petitioner provided a brief
curriculum vitae for the general manager, controller, produce manager and quality assurance manager.
According to the information provided, none of these employees completed any secondary or university
education.
In a letter dated January 31, 2007, counsel for the petitioner re-iterated the beneficiary's previously described
duties and stated that such duties establish his employment in an executive capacity. Counsel's letter also
included a detailed position description for the company's other employees, which are part of the record and
will not be repeated in their entirety here. Briefly, the petitioner indicated that the general manager reports to
the beneficiary; places promotional and recruitment advertisements; makes hiring decisions; interviews and
trains staff; prepares inventory reports; makes purchasing recommendations; enforces company policies and
standards; reconciles cash register receipts; calculates time cards; creates the work schedule for cashiers and
stockers; and is responsible for ordering inventory and ensuring timely delivery. Counsel provided job
descriptions for all positions that report to the general manager, including the controller, quality assurance
manager, produce manager, cashier, stocker, and "employee." Counsel indicated that all employees work 40
hours per week.
The director denied the petition on February 28, 2007, concluding that the petitioner had not established that
the beneficiary would be employed in a primarily managerial or executive capacity under the extended
petition. The director acknowledged the position descriptions submitted for the beneficiary's subordinates and
stated "it appears that the duties you have outlined would normally require the skills of bona-fide
professionals." The director determined, however, that "the nature of [the petitioner's] small, new grocery
store is not such that it would require workers who have professional-level expertise to fulfill the duties
affiliated with the job titles." The director therefore found that the beneficiary would not be employed in a
managerial or executive capacity based on his supervisory responsibilities, as he would not supervise and
control the work of supervisory, managerial or professional employees.
The director also conceded that a number of the beneficiary's listed duties "would normally be required of or
associated with a manager or executive," but noted that "this service is not convinced that the beneficiary will
actually be carrying out these duties." The director observed that the petitioner's "small, new grocery store
does not appear to require a bona fide manager or executive who would perform the tasks you have listed on a
fulltime basis." The director concluded that "it appears that [the beneficiary] would be engaged in the non­
managerial, day-to-day operations of your establishment." Finally, the director noted that the beneficiary's
proffered salary of $30,000 "is incongruous with that of an employee who is actually managing other bona
fide managers or professionals."
On appeal, counsel for the petitioner objects to the director's characterization of the petitioning company as
"small" and "new," noting that the company was established in 1994, not 2005 as stated by the director, and in
fact achieved sales of nearly $6 million in 2005. Counsel asserts that the petitioning company, based on its
age and size, does in fact require workers with professional-level expertise to fulfill the positions of vice
president, general manager, controller, quality assurance manager and produce manager.
EAC 07 024 51564
Page 6
Counsel further asserts that the beneficiary, as an owner of the foreign entity, has an indirect ownership
interest in the petitioning company. Counsel contends that the beneficiary's salary of $30,000 is not
inconsistent with that of an owner/employee, who must consider his long-term interest in the company and
may make a business decision to receive a lower salary at this time.
Finally, counsel contends that the petitioner requires a bona fide, full-time executive and has ample staff to
perform both the managerial and non-managerial day-to-day operations of the business.
In support of the appeal, the petitioner submits an advisory opinion from Adjunct
Professor of Management at Saint Louis University, who addresses the beneficiary's seemingly low salary and
states that it is not unusual for an executive to be paid consistent with the organization's current financial
performance, and that the entire compensation package must be taken into account. opines that
"in a majority of cases where an organization has only 11 employees, it would be difficult to conclude
anything different from the [director's decision]," as such a simple organization would not typically support
. more than one person in a managerial/executive capacity." However, finds that the petitioning
company is "an exception to this general assumption given the fact that [the beneficiary] has 50 percent
ownership of [the foreign entity], and thus 25 percent ownership of [the petitioner]. states that it
is her expert 0 inion that the beneficiary is an executive "due to the fact that he is a 25 percent owner of the
organization." concludes that she agrees with the director's decision that the record did not
establish the beneficiary's eligibility as a manager or executive, but notes that because the crucial fact of the
beneficiary's ownership of the company was omitted, the decision should be reversed.
Upon review, the AAO will withdraw the director's decision and remand the petition to the director for
further action and entry of a new decision.
The director's decision was largely based on conjecture and speculation with no explanation as to why the
director concluded that the beneficiary and his subordinates would not actually perform the stated job duties.
Furthermore, the director's determination that the beneficiary's salary is "incongruous" with an executive or
managerial position is contrary to the statute and regulations, which neither require, nor permit, a beneficiary's
salary to be considered as a factor in determining the beneficiary's employment capacity. Finally, the
director's repeated references to the petitioning company as "small" and "new" reflect an incomplete review of
the evidence provided, which shows that the company was establi'shed in 1994 and achieves significant
annual sales of $6 million.
The AAO finds that the evidence of record does not directly reflect that the petitioner or beneficiary is
ineligible for the benefit sought. However, although the director issued a request for evidence in thjs matter,
the AAO finds that additional evidence will be required in order to establish that the beneficiary will be
employed in a primarily managerial or executive capacity under the extended petition. The petition will be
remanded to the director, who is instructed to request additional evidence consistent with the discussion
below.
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. § 214.2(l)(3)(ii). The petitioner's description of the job
EAC 07 024 51564
Page 7
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 position description provided for the beneficiary is vague and nonspecific and provides little
understanding as to what managerial or executive tasks the beneficiary performs on a day-to-day basis. For
example, it is unclear what qualifying duties are included in the beneficiary's responsibility for "reviewing
buying and selling of products with vendors and customers." Accordingly, the director is instructed to request
that the petitioner provide a comprehensive, specific description of the duties performed by the beneficiary,
including a breakdown of the percentage of time he will devote to those duties on a weekly basis, and a
description of the duties he performed on a "typical day," as of the date the petition was filed. If the petitioner
indicates that the beneficiary "oversees," "supervises," "directs," "reviews" or "manages" an activity or
function, the petitioner should clearly indicate who among its employees performs the routine duties
associated with the particular activity or function.
When examining the managerial or executive capacity of a beneficiary, United States Citizenship and
Immigration Services (CIS) reviews the totality of the record, including descriptions of a beneficiary's duties
and those of his or her subordinate employees, the nature of the petitioner's business, the number of hours
worked by subordinate employees, and any other facts contributing to a complete understanding of a
beneficiary's actual role in a business. The evidence must substantiate that the duties of the beneficiary and
his or her subordinates correspond to their placement in an organization's structural hierarchy; artificial tiers
of subordinate employees and inflated job titles are not probative and will not establish that an organization is
sufficiently complex to support an executive or manager position. An individual whose primary duties are
those of a first-line supervisor will not be considered to be acting in a managerial capacity merely by virtue of
his or her supervisory duties unless the employees supervised are professional. Section 101(a)(44)(A)(iv) of
the Act.
The petitioner claims to operate a retail grocery store with eleven employees. Of these eleven employees, the
petitioner claims to have two executive employees (the beneficiary and the president), four managers, and five
cashiers/stockers. The petitioner should provide additional explanation of the duties performed by its
president and explain any overlap between the president's duties and the beneficiary's duties, particularly in
light of ~omments that such an organization would typically not support more than one
managerial or executive position. Without further explanation, the AAO questions the need for five layers of
employees in an organization with eleven employees. Furthermore, the petitioner should provide a more
detailed organizational chart that identifies all employees by name, including the cashiers/stockers, as of the
date the petition was filed.
The record also contains no evidence of wages paid to employees to support the petitioner's statements that all
eleven employees work on a full-time basis. Given the labor intensive nature of the petitioner's retail business
and its relatively small staff size, the AAO finds this evidence critical to a determination that the lower-level
employees would relieve the beneficiary from performing first-line supervisory and operational tasks. The
petitioner should therefore be instructed to provide evidence of wages paid to employees in the form of IRS
Forms 941, Employer's Quarterly Tax Return, and state quarterly wage reports for the last quarter of 2006 and
the first quarter of 2007, as well as copies of IRS Forms W-2, Wage and Tax Statement, issued to employees
EAC 07 024 51564
Page 8
in 2006. The petitioner should also identify the hourly wage paid to any non-salaried employees as of
November 2006.
In addition, the AAO notes that the record as presently constituted contains no evidence of the ownership of
the United States company. While the regulation at 8 C.F.R. § 214.2(l)(14)(i) does not specifically require the
submission of such evidence, the AAO notes an apparent inconsistency that requires resolution. The petitioner
claims that the foreign entity acquired a 50 percent interest in the petitioning company in 2005, however, the
beneficiary's initial L-IA petition was filed in December 2004, before the purported acquisition ofthe foreign
entity's ownership interest in the U.S. company.
The petitioner should be instructed to submit copies of all stock certificates issued by the U.S. company to
date, a copy of its stock transfer ledger, evidence related specifically to the foreign entity's acquisition of an
ownership interest in the company, and any other independent and objective evidence that will clearly
demonstrate the foreign entity's ownership interest in the U.S. company.
It is emphasized that the petitioner must establish eligibility at the time of filing the nonimmigrant visa
petition. A visa petition may not be approved at a future date after the petitioner or beneficiary becomes
eligible under a new set of facts. Matter of Michelin Tire Corp., 17 I&N Dec. 248 (Reg. Comm. 1978).
Evidence and explanation that the petitioner submits must show eligibility as of the filing date, November 2,
2006. Documentation of business activity and hiring that occurred after the date of filing is not probative of
the petitioner's and beneficiary's eligibility and will not be considered.
In this matter, the evidence of record is insufficient to establish the beneficiary's and petitioner's eligibility.
Further evidence is required in order to establish that the beneficiary meets the requirements for L-IA
classification as of the date of filing the petition. The director's decision will be withdrawn and the matter
remanded for further consideration and a new decision. The director is instructedto issue a request for evidence
addressingthe issues discussed above, and anyother evidence he deems necessary.
ORDER: The decision of the director dated February 28, 2007 is withdrawn. The matter is
remanded fOf further action and consideration consistent with the above discussion and
entry of a new decision.