AAO decisions for intracompany transferee cases in january 2012

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AAO decisions for intracompany transferee cases in january 2012

  1. 1. AAO Decisions for Intracompany Transferee Cases in January 2012 LINK & RESULT EXCERPTS & REMARKSJan032012_03D7101.pdf The petitioner is a new office seeking to employ the beneficiary as its President for a period of one year. SUMMARILY The director denied the petition on March 6, 2009, DISMISSED concluding that the petitioner failed to establish that the beneficiary would be employed in a primarily managerial or executive capacity within one year of operation. ***** On appeal, the petitioner indicates on the Form I- 290B, Notice of Appeal or motion, that "My brief and/or additional evidence will be submitted to the AAO within 30 days." The petitioner filed the appeal on April 8, 2009. As of this date, no brief or additional evidence has been submitted, and the record will be considered complete.Jan042012_01D7101.pdf The petitioner, an Illinois corporation, states that it operates a software consulting and product APPEAL DISMISSED development business. .... The petitioner seeks to employ the beneficiary from May 2009 to May 2011 This Decision could be to serve in the position of Director: Products and used as a primer for Services. practitioners and The director denied the petition, concluding that the especially for petitioner failed to establish that the beneficiary is or personnel departments! will be employed in the United States 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, the petitioner asserts that it has demonstrated that the beneficiary will be employed primarily in a qualifying executive capacity. The petitioner submits a brief and a new business plan in support of the appeal. Page 1 of 9
  2. 2. LINK & RESULT EXCERPTS & REMARKSJan042012_02D7101.pdf How did this ever get approved in the first place? I’m sorry but “chief cook and bottle washer” does not APPEAL DISMISSED an executive make, or else all moms (and certain dads) would be qualified L1-As of “My Family, Inc.” or “Mom-n-Pop Co.” doing business as the Smiths or Joneses or Wongs or Nguyens or Singhs or Whoevers! Yes, I am jaded. How could you tell? The petitioner filed this nonimmigrant petition seeking to extend the beneficiarys employment as a nonimmigrant intracompany transferee pursuant to section 101(a)(15)(L) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1101(a)(15)(L). The petitioner, an Arizona limited liability company, states that it operates an exotic Thai restaurant. It claims to be a subsidiary of [NAME REDACTED] located in Bangkok, Thailand. The beneficiary was initially granted L-l A status in 2008 and the petitioner now seeks to extend her status so that she may continue to serve in the position of general manager. ***** During [the beneficiarys] employment in the United States sheThis is part of what the has used essentially the executive and managerial skills andpetitioner provided in knowledge to supervise the professional stafforder to justify this (approximately 3 professionals) in business operation. Sherequest. >>>>>>>> oversees the business of newly acquired Thai restaurants as well as completing the process for our Thai Culture Center. She reviews the general agreements or contracts in our business dealings with landlords or government agencies. She supervises a chef, a marketing manager and a contracted accountant to successfully move foreword [sic] with our new restaurant and our culture center in all aspects of the business operation. She controls quality and quantity of our products and services as well as the financial records of the operation. She manages and directs the business negotiations and interactions with suppliers, other business entities and shipping company to complete the import and export process. She examines and develops US market for our products and draft [sic] business proposals for the parent companys review and approval. She also exercises the responsibility of training and hiring of other employees in the restaurant and culture center. Page 2 of 9
  3. 3. LINK & RESULT EXCERPTS & REMARKS In the extension period she will use the same skills and experience to continue her job responsibilities as mentioned above. Her presence at our company will be critical for the next two years. The companys operation and successful expansion for the past year show that she has played a key role in our business operation, and her continuing presence is essential to bring the expansion effort to a successful conclusion. ***** ......An employee who primarily performs the tasksThis case also stands for necessary to produce a product or to provide servicesthe premise that the is not considered to be employed in a managerial oragency does not have to executive capacity. See sections 101(a)(44)(A) andapprove extensions for (B) of the Act; see also Matter of Church Scientologycases previously International, 19 I&N Dec. 593, 604 (Comm. 1988).approved in error. >>>> Here, the petitioner did not indicate that the>>>>>>>>>>>>>>>>>> beneficiary performs as a function manager. The petitioner did not articulate the beneficiarys duties as a function manager and did not provide a breakdown indicating the amount of time the beneficiary spends on duties that would clearly demonstrate she manages an essential function of the U.S. company. The statutory definition of the term "executive capacity" focuses on a persons elevated position within a complex organizational hierarchy, including major components or functions of the organization, and that persons authority to direct the organization. Section 101 (a)(44)(B) of the Act, 8 U.S.C. § ll0l(a)(44)(8). Under the statute, a beneficiary must have the ability to "direct the management" and "establish the goals and policies" of that organization. Inherent to the definition, the organization must have a subordinate level of employees for the beneficiary to direct and the beneficiary must primarily focus on the broad goals and policies of the organization rather than the day-to-day operations of the enterprise. An individual will not be deemed an executive under the statute simply because they have an executive title or because they "direct" the enterprise as the owner or sole managerial employee. Page 3 of 9
  4. 4. LINK & RESULT EXCERPTS & REMARKSJan062012_01D7101.pdf The petitioner claims to be a rental management and food distribution business established in 2009. ItDISMISSED AS MOOT seeks to employ the beneficiary as a Marketing Manager/vice President. The petitioner, therefore, endeavors to classify the beneficiary as a an L-I A nonimmigrant intracompany transferee pursuant to section 101 (a)( 15)(L) of the Immigration and Nationality Act (the Act). 8 U.S.C. § 1 101 (a)(I5)(L). The director denied the petition on the grounds that the petitioner failed to establish that beneficiary has been employed abroad for one continuous year in an executive or managerial capacity in the last three years; the intended United States operation will not support an executive or managerial position; and the petition was improperly filed as it was not signed by a designated representative of the employing organization. A review of the records of U.S. Citizenship and Immigration Services (USCIS) indicates that this beneficiary is also the beneficiary of an approved immigrant petition and has adjusted status to that of a conditional permanent resident as of July 29, 2011. While the petitioner has not withdrawn the appeal in this proceeding, it would appear that the beneficiary is presently a conditional permanent resident and the issues in this proceeding are moot. Therefore, this appeal is dismissed.Jan112012_01D7101.pdf The sole issue addressed by the director is whether the petitioner established that the beneficiary willAPPEAL DISMISSED be employed in the United States in a primarily managerial or executive capacity. ***** The petitioner flied the Form 1-129, Petition for a Nonimmigrant Worker, on November 10, 2008. The petitioner indicated on the Form 1-129 that it is Page 4 of 9
  5. 5. LINK & RESULT EXCERPTS & REMARKS operating a restaurant without indicating the number of employees or its gross annual income. The director issued a request for additional evidence ("RFE") on March 26, 2009 instructing the petitioner to submit, inter alia, the following: (1) a list of the U.S. employees supervised by the beneficiary, including a brief description of job duties and educational level for all employees; (2) a copy of the U.S. companys organizational chart clearly identifying the beneficiarys position and the employees he supervises; (3) a comprehensive description of the beneficiarys duties indicating exactly whom the beneficiary directs and the percentage of time the beneficiary spends performing each of the listed duties; and (4) evidence of wages paid to employees and contractors in 2008. In response to the RFE, the petitioner submitted an organizational chart for the U.S. company, a letter indicating the beneficiarys and subordinates job duties, and tax returns and Forms W-2 for the U.S. company. The petitioner submitted an organizational chart for the U.S. company listing the beneficiary as Manager, two Cooks and two Waiters/Cashiers. ***** The AAO does not doubt that the beneficiary will have the appropriate level of authority over the petitioners business as its president. However, the definitions of executive and managerial capacity each have two parts. First, the petitioner must show that the beneficiary performs the high-level responsibilities that are specified in the definitions. Second, the Page 5 of 9
  6. 6. LINK & RESULT EXCERPTS & REMARKS petitioner must show that the beneficiary primarily performs these specified responsibilities and does not spend a majority of his or her time on day-to-day This excerpt is of functions. Champion World, Inc. v. INS, 940 F.2dparticular importance to 1533 (Table), 1991 WL 144470 (9th Cir. July 30, any would-be 1991)1. The fact that the beneficiary owns and entrepreneur seeking to manages a business does not necessarily establish open a “new office” in eligibility for classification as an intracompany the United States as a transferee in a managerial or executive capacity means to get a foothold within the meaning of sections 101(a)(l5)(L) of the on either an EB-2 NIW Act. See 52 Fed. Reg. 5738, 5739-40 (Feb. 26, 1987)or EB-5 immigrant visa. (noting that section 101 (a)(15)(L) of the Act does not include any and every type of "manager" or "executive").Jan112012_03D7101.pdf The petitioner, a [REDACTED INFORMATION] manufacturing consulting and lean coaching business. APPEAL DISMISSED It claims to be a subsidiary of [NAME REDACTED], located in London, England (U.K.). The beneficiary was previously granted L-IA status for a period of ten months, from June 2008 to April 2009, to open a new office in the United States and the petitioner now seeks to extend his status so that he may continue to serve in the position [CURIOUSLY REDACTED INFORMATION]. The director denied the petition, concluding that the petitioner failed to establish that the beneficiary will be employed in the United States 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 asserts that the1 Unpublished Disposition NOTICE: Ninth Circuit Rule 36-3 provides that dispositions otherthan opinions or orders designated for publication are not precedential and should not be citedexcept when relevant under the doctrines of law of the case, res judicata, or collateral estoppel. Page 6 of 9
  7. 7. LINK & RESULT EXCERPTS & REMARKS beneficiary is employed both in an executive and managerial position fully satisfying all requirements of the two statutory definitions. Counsel submits a brief and additional evidence in support of the appeal. ***** The petitioner also submitted an organizational chart that lists the beneficiary as director, four named subordinates with Senior Specialist titles, one to-be- determined subordinate with Senior Specialist title, and one to-be-determined subordinate with Specialist title. The organizational chart also shows future plans to hire three additional Senior Specialists and two Specialists in 2009. The director issued a request for additional evidence ("RFE") on April1, 2009 instructing the petitioner to submit, inter alia, the following: (1) indicate the total number of employees at the U.S. location where the beneficiary will be employed; (2) a copy of the U.S. companys organizational chart clearly identifying the beneficiarys position and the employees he supervises by name and job title, including a brief description of job duties, educational level, annual salaries/wages and immigration status for all employees under the beneficiarys supervision; (3) a more detailed description of the beneficiarys duties in the U.S. including the percentage of time spent in each of the listed duties; (4) copies of the U.S. companys quarterly wage reports for all employees for the last four quarters; and (5) copies of the U.S. companys payroll summary evidencing wages paid to employees. Page 7 of 9
  8. 8. LINK & RESULT EXCERPTS & REMARKS [My observation (a “truism”): IF everybody is a “Specialist” ; THEN nobody is truly “special” in that field of endeavor, or work environment, or particular business.] ***** The petitioner also submitted a comprehensive position description for the beneficiarys subordinates, that states in part: *** A Senior Lean Coaching Specialist assists senior management in identifying, contacting, negotiating, contracting, and implementing [the petitioners] services to clients and identifies client operational performance deficits and appropriate levers and build[ s] a detailed understanding of major operational opportunities. A Senior Lean Coaching Specialist performs diagnostic gap analysis for all key metrics (cost, quality, productivity, lead time, delivery, reliability, safety), and assists in performing operational analyses to determine levels of waste, variability, and inflexibility. A Senior Lean Coaching Specialist performs benchmark visits and initial rough-cut assessment of proposed improvement levers, and [sic]well as providing diagnostic presentations to client. In relation to the business development activities, a Senior Lean Coaching Specialist utilizes knowledge of [the petitioners] processes and procedures to help expand U.S. operations and increase the companys presence in the North American market and advises management on means of obtaining new customers and retaining existing customers. A Senior Lean Coaching Specialist analyzes our companys annual revenues, employment policies and expenditures, and develops solutions for increased profitability, as well Page 8 of 9
  9. 9. LINK & RESULT EXCERPTS & REMARKS as meeting with the executives of our company and conducting studies and surveys to obtain data and recommend solutions including initial development of business plans, strategic/creative briefings and work closely with all of our departments to effectively implement our budgets and goals and policies. *** The director denied the petition on May 20, 2009, concluding that the petitioner failed to establish that the beneficiary would be employed in a primarily managerial or executive position under the extended petition. In denying the petition, the director observed that the position description submitted indicates that the beneficiary will be involved in providing the services of the company.Jan302012_03D7101.pdf The nonimmigrant visa petition was denied by the director, Vermont Service Center. The AdministrativeMOTION DISMISSED Appeals Office (AAO) dismissed the subsequently PRIOR APPEAL AND filed appeal and affirmed the directors decision toMOTION DISMISSED deny the petition. The [PERTITION ER?] filed a motion to reopen and/or motion to reconsider with the AAO which the AAO also dismissed. The matter is now before the AAO on a second motion to reopen and reconsider. The AAO will dismiss the motion. ***** This has a convoluted procedural history that is worth reading simply to avoid emulating! Page 9 of 9

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