remanded L-1A Case: Real Estate Development

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PUBLICCOPY
u.s. Department of Homeland Security
20 Massachusetts Ave., NW, Rm. 3000
Washington, DC 20529
U.S.Citizenship
and Immigration
Services
File: EAC 07 032 51043 Office: VERMONT SERVICE CENTER Date: a:T 0 4 till
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)(I5)(L)
ON BEHALF OF PETITIONER:
SELF-REPRESENTED
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.
~~ P. Wiemann, C . f
A ~ ·nistrative Appeals Office
www.uscis.gov
EAC 07 032 51043
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 filed this nonimmigrant petition to extend the employment of its marketing manager as an
L-IA nonimmigrant intracompany transferee pursuant to section 10I(a)(15)(L) of the Immigration and
Nationality Act (the Act), 8 U.S.C. § 1101(aXI5)(L). The petitioner, a Florida corporation, is described as a
real estate developer. The petitioner states that it is a subsidiary of American Service Market, c.A., located in
Cabimas, Venezuela. The beneficiary was previously granted a one-year period in L-IA classification in
order to open a new office in the United States, and the petitioner now seeks to extend his status for two
additional years.
The director denied the petition, concluding that the petitioner did not establish that the beneficiary would be
employed in the United States in a primarily managerial or executive capacity. The director observed that the
beneficiary would not supervise any subordinate employees or manage a function of the petitioning
organization.
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, the petitioner asserts that due to the nature of its
business, it utilizes the services of independent contractors and presented evidence that the company has dealt
with more than 28 different companies to complete its real estate projects. The petitioner asserts that the
beneficiary manages a function "which is the marketing strategies and everything involved in the marketing
process.If The petitioner submits a letter in support of the appeal.
To establish eligibility for the L-l 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.
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 of the services to be performed.
EAC 07 032 51043
Page 3
(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.
The regulation at 8 C.F.R. § 214.2(l)(l4)(ii) also provides that a visa petition, which involved the opening of a
new office, may be extended by filing a new Form 1-129,accompanied by the following:
(A) Evidence that the United States and foreign entities are still qualifying organizations
as defined in paragraph (l)(I)(ii)(G) of this section;
(B) Evidence that the United States entity has been doing business as defined In
paragraph (l)(IXii)(H) of this section for the previous year;
(C) A statement of the duties performed by the beneficiary for the previous year and the
duties the beneficiary will perform under the extended petition;
(0) A statement describing the staffing of the new operation, including the number of
employees and types of positions held accompanied by evidence of wages paid to
employees when the beneficiary will be employed in a managerial or executive
capacity; and
(E) Evidence of the financial status of the United States operation.
The sole issue addressed by the director is whether the beneficiary will be employed by the United States
entity in a primarily managerial or executive capacity.
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;
EAC 07 03251043
Page 4
(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.
The nonimmigrant petition was filed on November 15, 2006. The petitioner stated on Form 1-129 that the
beneficiary would continue to serve as the marketing manager of the U.S. company, a real estate development
business with two employees. Where asked to describe the beneficiary's proposed duties, the petitioner
indicated: "Continuation of previously approved employment without change." The petitioner submitted a
letter in support of the petition, but it did not include a description of the duties the beneficiary performs as
marketing manager of the United States entity. The letter included a position description for the beneficiary's
previous role as marketing manager of the foreign entity, which operates'a department store.
The petitioner noted that during its first year of operations, the company purchased a total of four vacant lots,
and completed the construction and sale of a single family home on one of the lots. The petitioner stated that
two multi-unit dwellings are also under construction. The petitioner provided project summaries and copies of
its agreements with a contract company, Gruveco Development Company, LLC, which was retained to
perform the construction of the buildings.
The director issued a request for evidence on December 11, 2006. The director instructed the petitioner to
submit an organizational chart for the U.S. company which clearly specifies the beneficiary's proposed
subordinates. The director also requested a complete position description for the beneficiary's subordinates in
the United States, including a breakdown of the number of hours devoted to each of the subordinates' job
duties on a weekly basis. The director requested that the petitioner explain how the duties of the beneficiary's
EAC 07 032 51043
Page 5
subordinates are "truly managerial or require the expertise of a professional." Finally, the director requested
copies of educational credentials for the beneficiary's subordinates.
In a response received on February 15,2007, the petitioner stated that the beneficiary does not have any direct
subordinate employees, but noted that he "manages more than 28 different companies and hundreds of
employees." The petitioner provided a letter dated January 25, 2007 from its primary contractor, Gruveco
Development Co., LLC, which provided a list of all subcontractors utilized by the petitioner's three
construction projects. The list identifies 28 companies specializing in roofing, windows, flooring, air
conditioning, painting, stucco, plumbing, electrical, carpentry finishing, security systems, architecture and
design, masonry, surveying, etc. The petitioner submitted an organizational chart indicating that the
beneficiary reports to the company president and supervises all independent contractors.
The director denied the petition on March 29, 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 noted that the beneficiary does not have any workers employed subordinate to him, and therefore
it had not been established that he would be supervising managerial, professional, or managerial employees
who could relieve him from providing the services of the corporation. The director further stated: "[A]
company comparable to yours in size and nature would normally contract out for the services of a marketing
manager on an as-needed basis. Therefore, it appears that the beneficiary would not be employed in a
managerial or executive capacity."
In addition, the director determined that the beneficiary would not manage a function or function at a senior
level in the petitioner's organizational hierarchy. The director found that the beneficiary's offered salary of
$32,000 is "incongruous with that of an employee who is actually managing other bona fide managers or
professionals." Finally, the director concluded that the petitioner's "small, new real estate company does not
appear to require a bona fide manager or executive who would perform the tasks you have listed on a full­
time basis. Rather, it appears that he would be engaged in the non-managerial, day-to-day operations of your
establishment. "
On appeal, the petitioner asserts that it provided evidence of the U.S. company's use of a large number of
independent contractors, noting.that such staffing is typical in its line of business. Additionally, the petitioner
states that the beneficiary "manages a function which is the marketing strategies and everything involved in
the marketing process." The petitioner emphasizes that the company has invested more than $1 million in real
estate property in Central Florida and is profitable. Finally, the petitioner objects to the director's reference to
the beneficiary's salary as being "incongruous" with a managerial or executive position. The petitioner notes
that the U.S. company is a family business in its first year of operation which "freely decided to have low
salaries."
Upon review, the AAO will withdraw the director's decision and remand the petition to the director for
further consideration and entry of a new decision.
The regulation at 8 C.F.R. § 103.2(b)(8) states the following:
EAC 07 032 51043
Page 6
If there is evidence of ineligibility in the record, an application or petition shall be denied
on that basis notwithstanding any lack of required initial evidence . . .. [1]n other
instances where there is no evidence of ineligibility, and initial evidence or eligibility
infonnation is missing or the Service ·finds that the evidence submitted either does not
fully establish eligibility for the requested benefit or raises underlying questions
regarding eligibility, the Service shall request the missing initial evidence, and may
request additional evidence ....
As the present petition is a request for an extension of the beneficiary's L-I A status following the opening of a
"new office" in the United States, the petitioner was required to submit initial required evidence pursuant to 8
C.F.R. § 214.2(l)(14)(ii). This initial evidence includes a statement of the duties perfonned by the beneficiary
for the previous year and the duties the beneficiary will perfonn under the extended petition. See 8 C.F.R. §
214.2(1)(14Xii)(C).
Although the director issued a request for evidence, the director failed to request the required description of
the beneficiary's job duties. Instead, the director based the decision solely on the fact that the beneficiary
would not supervise subordinate managers or professionals, and on his unsupported opinion that the
beneficiary's offered salary is"incongruous" with a managerial or executive position. Although the director's
decision refers to a list of duties submitted by the petitioner, the AAO notes that no such list of duties was
requested or submitted.
The director's decision reflects an incomplete application of the statute and regulations to the facts of this
case, as the director restricted his analysis of the beneficiary's eligibility as a manager or executive to whether
the beneficiary would supervise subordinate professionals or managers. Furthennore, the director's
detennination 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 detennining the beneficiary's employment capacity.
However, because of a lack of required initial evidence, the AAO cannot detennine that the beneficiary would
be employed in a managerial or executive capacity under the extended petition. The AAO agrees that the
evidence of record raises underlying questions regarding eligibility. 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
duties must clearly describe the duties to be perfonned by the beneficiary and indicate whether such duties are
either in an executive or managerial capacity. !d.
As noted above, the petitioner did not submit a description of the beneficiary's duties as marketing manager
prior to the director's decision. On appeal, the petitioner states that the beneficiary "manages a function which
is the marketing strategies and everything involved in the marketing process." Based on this vague statement,
it is impossible to even speculate, much less determine, what duties the beneficiary perfonns on a day-to-day
basis, such that they could be classified as managerial or executive.
EAC 07 032 51043
Page 7
Accordingly, considering the paucity of evidence in the record regarding the beneficiary's actual duties, 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" or "manages" an
activity or function, the petitioner should clearly indicate who among its employees or contract staff performs
the routine duties associated with the particular activity or function.
The AAO does not dispute that small companies require leaders or individuals who plan, formulate, direct,
manage, oversee and coordinate activities; however the petitioner must establish with specificity that the
beneficiary's duties comprise primarily managerial or executive responsibilities and not routine operational or
administrative tasks. The record shows that the petitioner employs a president and a marketing manager, and
appears to contract out work associated with construction activities. The record as presently constituted does
not establish who performs non-qualifying duties associated with the petitioner's day-to-day administrative,
clerical, marketing, and financial functions.
In addition, although the AAO acknowledges the petitioner's claim that it utilizes contractors and
subcontractors to complete its real estate projects, the record does not clearly indicate how the beneficiary, as
marketing manager, actually supervises these projects and employees on a day-to-day basis. The petitioner
should further explain the beneficiary's role with respect to supervision of contractors. Further, the record as
presently constituted does not contain evidence of payments to contractors. Accordingly, the director should
request documentary evidence of such payments made during the petitioner's first year of operations.
On appeal, the petitioner claims that the beneficiary manages the marketing function for the U.S. company.
The term "function manager" applies generally when a beneficiary does not supervise or control the work of a
subordinate staff but instead is primarily responsible for managing an "essential function" within the
organization. See section 101(a)(44)(A)(ii) of the Act, 8 U.S.C. § 1 101(a)(44)(A)(ii). The term "essential
function" is not defined by statute or regulation. If a petitioner claims that the beneficiary is managing an
essential function, the petitioner must furnish a written job offer that clearly describes the duties to be
performed in managing the essential function, i.e. identify the function with specificity, articulate the essential
nature of the function, and establish the proportion of the beneficiary's daily duties attributed to managing the
essential function. See 8 C.F.R. § 214.2(l)(3)(ii). In addition, the petitioner's description of the beneficiary's
daily duties must demonstrate that the beneficiary manages the function rather than performs the duties
related to the function. The petitioner's claim that the beneficiary manages "everything involved in the
marketing process" is insufficient to establish his employment as a function manager. The petitioner should
provide additional evidence in support of this claim in accordance with the requirements set forth above.
In addition, the petitioner is required to submit evidence that it has been doing business for the previous year
See 8 C.F.R. §§ 214.2(l)(14)(ii)(D). The petitioner states that it has purchased a total of four vacant lots and
has developed or is developing residential buildings on three of them. The petitioner should be instructed to
provide additional documentary evidence of its purchase, ownership, development and/or sale of the four
properties identified, and additional documentary evidence of its business activities, such as evidence of
purchases, payments to contractors, applications for permits, etc.
EAC 07 032 51043
Page 8
The record also contains insufficient evidence of the financial status of the U.S. company, as required by 8
C.F.R. § 214.2(l)(14)(ii)(D). The petitioner submitted a copy of its IRS Form 1120, U.S. Corporation Income
Tax Return, for 2005, which reflects no income. The petitioner should be requested to submit a copy of the
financial status of the U.S. company as of November 2006, when the petition was filed, such as its 2006
corporate tax return and/or year-end financial statements for that year.
Finally, the record as presently constituted contains inconsistent evidence regarding the petitioner's
ownership that precludes a finding that the petitioner maintains a qualifyipg relationship with the foreign
entity, as required by 8 C.F.R. § 214.2(l)(14)(ii)(A). The petitioner claims to be a wholly owned subsidiary
of American Service Market, c.A., and has submitted a copy of its stock certificate number 1, issuing all 500
of the company's 500 authorized shares to the foreign entity. However, the petitioner has indicated on its 2005
IRS Form 1120 at Schedule K, that no foreign person or corporation owns 25% or more of its stock. It is
incumbent upon the petitioner to resolve any inconsistencies in the record by independent objective evidence.
Any attempt to explain or reconcile such inconsistencies will not suffice unless the petitioner submits
competent objective evidence pointing to where the truth lies. Matter ofHo, 19 I&N Dec. 582, 591-92 (BIA
1988). The petitioner should be instructed to clarify this discrepancy and to submit additional documentary
evidence in support of the claimed qualifying relationship, such as the company's stock transfer ledger, and
evidence that the foreign entity paid for its 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. Corom. 1978).
Evidence and explanation that the petitioner submits must show eligibility as of the filing date, November 15,
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 raises underlying questions regarding 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 instructed to issue a request for evidence addressing the issues
discussed above, and any other evidence he deems necessary.
ORDER: The decision of the director dated March 29, 2007 is withdrawn. The matter is remanded
for further action and consideration consistent with the above discussion and entry of a
new decision.