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AAO REINFORCING ITS POSITION AGAINST ANY HYBRID MANAGER OR EXECUTIVE. with Cases Appended

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AAO REINFORCING ITS POSITION AGAINST ANY HYBRID MANAGER OR EXECUTIVE. with Cases Appended

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AAO REINFORCING ITS POSITION AGAINST ANY HYBRID MANAGER OR EXECUTIVE. with Cases Appended

  1. 1. i @@O REINFORCING ITS POSITION @G@INST @NY HYBRID M@N@GER OR EXECUTIVE By Joseph P. Whalen (Tuesday, April 12, 2016) While I have written on this topic previously,1 it seems like the right time to do it again. It is 2016, and AAO continues to have to explain to petitioners the same basic principles it was explaining over a decade ago. I am not 100% certain whether the topic of the “hybrid” executive or manager is embodied in an administrative precedent decision (I cannot recall such a precedent) but even it has been mentioned, it was likely only in passing or in dicta. It seems to be a good time to suggest to AAO that a new decision is chosen that makes it crystal clear that hybrid executive/managers are not allowed, and why. I used the new non-precedent decision search tool to find cases that contain the word “hybrid” and the most recent one as of this writing is dated March 29, 2016. It involves an I-140 for the first preference immigrant classification for multinational executives or managers pursuant to Immigration and Nationality Act (INA or the Act) § 203(b)(1)(C), 8 U.S.C. § 1153(b)(1)(C). Here is the citation and an excerpt. Matter of ABCF-, LLC, ID# 16160 (AAO Mar. 29, 2016)2, states, in pertinent part: “A petitioner may not claim to employ the beneficiary as a hybrid "executive/manager" and rely on partial sections of the two statutory definitions. At a minimum, the petitioner must establish that the beneficiary meets each of the four criteria set forth in the statutory definition for either executive capacity or managerial capacity. Having previously filed an appeal based on the assertion that the Director was "in error" for discussing the Beneficiary's work in a managerial context, the Petitioner's reversal of course on this subject is not proper cause for reopening the proceeding.” Id. At pp. 3-4 Further down the list of search result links, I found case involving the “L-1A” nonimmigrant intracompany transferee pursuant to INA § 101 (a) (15) (L) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1101 (a) (15) (L). Once again, AAO was explaining that no “hybrid” executive/manager is allowed and why.                                                              1 See http://www.slideshare.net/BigJoe5/amicus-brief-on-managerial-or-executive-capacity-signed- 3182015 2 https://www.uscis.gov/sites/default/files/err/B4%20- %20Multinational%20Managers%20and%20Executives/Decisions_Issued_in_2016/MAR292016_02B4 203.pdf
  2. 2. ii Prior to September 2015, there was no citation string assigned to AAO’s non- precedent decisions, so all I can provide is the filename and link to the posted non- precedent decision. The non-precedent found at FEB152005_25D7101.pdf includes: “Upon review, counsel's assertions are not persuasive. 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).3 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. A beneficiary may not claim to be employed as a hybrid "executive/manager" and rely on partial sections of the two statutory definitions.” Id at p. 5 These two decisions are representative of the simple proposition that the “hybrid” approach fails because, more often than not (nearly universally), the description of the job duties fails to meet all four of the prongs of either of the two available definitions as to capacity. The two available possibilities are managerial or executive capacity. These two decisions are appended for educational and illustrative purposes. It would be helpful if AAO selected a decision for publication as precedent since it has been such a long time since this subject matter has been seriously addressed. The attached are not necessarily being suggested but perhaps something along these lines could be considered.                                                              3 The regulations at 8 C.F.R. § 2142(l)(3) an individual petition filed on Form 1-129 shall be accompanied by: (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.
  3. 3. U.S. Citizenship and Immigration Services MATTER OF ABCF-, LLC Non-Precedent Decision of the Administrative Appeals Office DATE: MAR. 29,2016 MOTION ON ADMINISTRATIVE APPEALS OFFICE DECISION PETITION: FORM I-140, IMMIGRANT PETITION FOR ALIEN WORKER The Petitioner, an operator of retail sporting goods stores, seeks to permanently employ the Beneficiary as its president and chief executive officer (CEO) under the first preference immigrant classification for multinational executives or managers. See Immigration and Nationality Act (the Act) § 203(b)(l)(C), 8 U.S.C. § 1153(b)(1)(C). This classification allows a U.S. employer to permanently transfer a qualified foreign employee to the United States to work in an executive or managerial capacity. The Director, Texas Service Center, denied the petition. The Director concluded that the Petitioner did not establish that the Beneficiary would be employed in a qualifying managerial or executive capacity. We dismissed the Petitioner's appeal from that decision. The matter is now before us on a motion to reopen. In its motion, the Petitioner submits additional evidence and asserts that this evidence better explains the Beneficiary's managerial and executive duties and the Petitioner's circumstances at the time of filing. Upon review, we will deny the motion. I. MOTION REQUIREMENTS For the reasons discussed below, we conclude that the motion does not merit reopenmg the proceeding. A. Overarching Requirement for Motions by a Petitioner The regulation at 8 C.F.R. § 103.5(a)(l)(i) states that "the official having jurisdiction may, for proper cause shown, reopen the proceeding." This provision limits our authority to reopen the proceeding to instances where "proper cause" has been shown for such action. Thus, to merit reopening, the submission must not only meet the formal requirements for filing, but the petitioner must also show proper cause for granting the motion.
  4. 4. Matter ofABCF-, LLC B. Requirements for Motions to Reopen The regulation at 8 C.F.R. § 103.5(a)(2), "Requirements for motion to reopen," states: A motion to reopen must [(1)] state the new facts to be provided in the reopened proceeding and [(2)] be supported by affidavits or other documentary evidence.... Further, the new facts must possess such significance that, "if proceedings ... were reopened, with all the attendant delays, the new evidence offered would likely change the result in the case." Matter ofCoelho, 20 I&N Dec. 464, 473 (BIA 1992); see also Maatougui v. Holder, 738 F.3d 1230, 1239- 40 (lOth Cir. 2013). II. DISCUSSION For the reasons discussed below, we find that the Petitioner has not shown proper cause for reopening the proceeding. The issue before us is whether the Beneficiary will be employed in the United States in a qualifying managerial or executive capacity. In this matter, the new facts on motion consist primarily of additional details regarding the Beneficiary's asserted duties with the petitioning company. Because we previously issued a full decision on the merits, this decision will focus on the materials submitted on motion, with some discussion of prior facts to give context to the new discussion. The petitioner filed Form I-140 on October 8, 2013, seeking to permanently employ the Beneficiary as its president and CEO. The Petitioner stated that the Beneficiary would receive dividends rather than a salary. On the petition form, the Petitioner indicated that it had five employees and two vacancies. Specifically, the Petitioner claimed to have a marketing manager, with no subordinates; a vacant e-commerce manager position, with no subordinates; a vacant store manager position; and four shop assistants working at the Petitioner's two brick and mortar stores. In denying the petition on November 24, 2014, the Director concluded: "it appears that the beneficiary supervises part-time employees ... and that the beneficiary's subordinates have received less than ... a full-time professional wage." The Director also stated that "USCIS [U.S. Citizenship and Immigration Services] must question the petitioner's ability to employ the Beneficiary in a managerial or executive capacity if it lacks sufficient staff to relieve him or her from having to perform primarily non-qualifying duties." The Director found that the Petitioner did not establish that it seeks to employ the Beneficiary as a manager. On appeal from the Director's decision, the Petitioner stated that the Director examined the record from the perspective of the requirements for a manager, despite "overwhelming evidence that the Beneficiary performed executive duties." We dismissed the appeal on September 18, 2015, stating that the Petitioner had provided vague and inconsistent job descriptions for the Beneficiary; the vacancies at the company appeared to leave the Beneficiary with significant operational 2
  5. 5. (b)(6) Matter ofABCF-, LLC responsibilities; and the Petitioner had not shown that the Beneficiary qualified for classification as an executive or as a manager. On motion, the Petitioner details the history of the company from to 2015, stating that the Beneficiary's executive oversight saw the company through economic challenges such as the recession and competition from a "huge new Superstore in the vicinity." The Petitioner asserts that the Beneficiary accomplished this, in part, through an emphasis on online sales. The company's performance is not, itself, evidence that the Beneficiary qualifies for classification as an executive. We are constrained by the legal definitions of executive and managerial capacity found in the statute and regulations. The Petitioner submits a copy of a short article from the issue of , indicating that the Beneficiary "plans to add social media features to his retail store's Web site." The ar1icle supports the assertion that the Beneficiary has taken steps to increase the company's reach through online activity, but we did not dismiss the appeal based on a finding that the Beneficiary lacks the authority to make such decisions for the company. Also, the article was published after the petition's October 8, 2013 filing date, and even then it refers to the Beneficiary's plans for the future. A petitioner must establish eligibility at the time of filing the petition. See 8 C.P.R. § 103.2(b)(l). The Beneficiary's plan to use social media as a marketing tool does not establish that he qualifies for classification as a multinational manager or executive, but even if it did, users cannot properly approve the petition at a future date after the petitioner or beneficiary becomes eligible under a new set of facts. See Matter ofKatigbak, 14 I&N Dec. 45, 49 (Reg'l Comm'r 1971). We have not disputed that the Beneficiary had authority over the company during the period in question, and continues to have that authority now. The definitions of executive and managerial capacity, however, 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). The Beneficiary's discretionary authority over the company addresses only the first part of the definitions. On appeal from the Director's decision, the Petitioner had asserted that the "Beneficiary met each requirement ... for a multinational executive in the U.S. company" and "has been performing executive duties in the U.S. company," and that the denial was "in error ... based on failure to provide evidence of managerial duties." Now, on motion, the Petitioner asserts that "it is difficult to distinguish 'executive' from 'managerial' aspects of running the business," and that the Beneficiary's duties "encompassed both managerial and executive tasks." A petitioner may not claim to employ the beneficiary as a hybrid "executive/manager" and rely on partial sections of the two statutory definitions. At a minimum, the petitioner must establish that the 3
  6. 6. (b)(6) Matter ofABCF-, LLC beneficiary meets each of the four criteria set forth in the statutory definition for either executive capacity or managerial capacity. Having previously filed an appeal based on the assertion that the Director was "in error" for discussing the Beneficiary's work in a managerial context, the Petitioner's reversal of course on this subject is not proper cause for reopening the proceeding. On Form I-290B, Notice ofAppeal or Motion, the Petitioner had three choices for the type ofmotion being filed: motion to reopen; motion to reconsider; or a combination of the two. The Petitioner specified that it was filing a motion to reopen. A motion to reconsider contests the correctness of the original decision based on the previous factual record, as opposed to a motion to reopen which seeks a new hearing based on new or previously unavailable evidence. See Matter ofCerna, 20 I&N Dec. 399, 403 (BIA 1991). See also 8 C.F.R. § 103.5(a)(2) and (3) (defining a motion to reopen and a motion to reconsider). In our decision of September 18,2015, we stated: The Petitioner claims to operate two separate retail stores, and states that the Beneficiary supervises one Manager for its "brick and mortar stores," who in tum supervises four shop assistants.... [T]his manager earned $11 ,969.00, and each shop assistant earned between $1,417.50 and $8,590.66 in 2013.... The Petitioner has not demonstrated that it employs a full time store manager or shop assistant staff. Given the nature of the retail business, the Petitioner's operating levels, and its staffing levels at the time of filing, the subordinate manager would reasonably need to perform the duties of the store manager and the shop assistants in order to keep the retail store staffed. Therefore, the Petitioner has not demonstrated that the Beneficiary performs primarily managerial or executive duties with respect to its "brick and mortar stores" because the Beneficiary does not have a sufficient staff to relieve him ofnon-managerial or non-executive duties. We also noted that the Petitioner's organizational chart referred to an "e-commerce manager," but that this position was vacant at the time of filing, and therefore the Beneficiary had no subordinates to whom he could delegate the responsibilities relating to the company's online activities. Section 101(a)(44)(C) of the Act allows us to consider staffing levels, but requires us to take into account the reasonable needs of the organization, in light of the overall purpose and stage of development of the organization. The Petitioner, on appeal, asserts that "[s]taffing levels .. . should not be used as a factor in this decision," because "[t]he economic crisis had broughtthe company to the brink of ruin" and, therefore, "[a]t the time of filing, the 'stage of development' can be likened to that of a newly formed entity." The Petitioner was established in more than eight years prior to the petition's October 2013 filing date. The Petitioner cites no legal authority requiring us to equate economic stress with regression in the company's "stage of development." 4
  7. 7. Matter ofABCF-, LLC The issue is not whether the company was thriving at the time the Petitioner chose to file the petition. Rather, the issue is whether the Beneficiary was able to primarily perform qualifying managerial or executive tasks. The Petitioner's staffing is directly relevant to this issue, because, as a retail store with an online sales presence, the company needed personnel to handle non-managerial and non-executive functions such as counter sales, purchasing, marketing, and shipping. If the Beneficiary personally performed these tasks, they must be considered non-qualifying duties regardless of the Petitioner's stage of development. The reasonable needs of the petitioner will not supersede the requirement that the beneficiary be "primarily" employed in a managerial or executive capacity as required by the statute and will not excuse a beneficiary who spends much of his or her time on non-qualifying duties. Regarding the store manager who earned less than $12,000 in 2013, the Petitioner submits copies of Florida Department of Revenue Employer's Quarterly Reports, showing that the individual worked for the Petitioner for only part of the year. The Petitioner contends that the store manager's "salary would have been in excess of $26,000 had she stayed on for the entire year. This salary is competitive with retail store managers in the area." The Petitioner submits a printout from the Foreign Labor Certification Data Center Online Wage Library, to show that the 2015-2016 entry- level wage for "First-Line Supervisors ofRetail Sales Workers" is $29,619 per year. The wage and tax information is consistent with the Petitioner's assertion that the store manager worked for the company for only a few months. It does not answer the question of who supervised the retail sales workers in the store manager's absence. The store manager's name does not appear on the quarterly report for the fourth quarter (October to December) of 2013. Therefore, she left the company before the Petitioner filed Form I-140 on October 8, 2013. (She appears to have left the company early in the third quarter of 2013, during which she earned only $991.50.) This is consistent with the Petitioner's statement at the time of filing that "[t]he Petitioner is currently recruiting to fill two positions that have recently opened, Manager and Shop Assistant." The Petitioner acknowledges that "[i]t wasn't until August of 2014 that the present manager ... was found and hired." The relevant portion ofthe Petitioner's organizational chart includes the following information: President and CEO (the Beneficiary) I Store Manager I Shop Assistants (4) Thus, the store manager is the only person in the chain of command between the Beneficiary and the shop assistants. The Petitioner, at the time of filing, had no store manager to supervise the sales workers at its two brick-and-mortar stores. Therefore, the Petitioner has not shown that anyone other than the Beneficiary served as the first-line supervisor for the sales staff at the time of filing. 5
  8. 8. Matter ofABCF-, LLC The Petitioner maintains that it employed a store manager "in 2013," but the evidence submitted on motion shows that the manager left the company before the filing date. Regarding the Petitioner's increasing reliance on e-commerce, the organizational chart shows the following information: President and CEO (the Beneficiary) I eCommerce Manager The chart does not list any subordinates (whether employed or contracted) below the e-commerce manager. As with the store manager, the e-commerce manager position was vacant at the time of filing, and remained vacant in August 2014. The Petitioner has not shown that the Beneficiary had any subordinate employees or contractors to handle the non-qualifying functions assigned to the e- commerce manager, such as "supplying the online customers with the purchased merchandise." Based on the Petitioner's own information, we previously concluded that the responsibilities for supervising the retail staff and operating the e-commerce function devolved upon the Beneficiary himself at the time of filing. The Petitioner, on motion, has not directly addressed, rebutted, or overcome this finding. Operational duties relating to the provision of goods and/or services are not qualifying managerial or executive duties. Further, a first-line supervisor is not considered to be acting in a managerial capacity merely by virtue of his or her supervisory duties unless the employees supervised are professional. 8 C.F.R. § 204.50)(4)(i). The Petitioner has not claimed or established that its shop assistants are professional employees. As stated above, the Petitioner must establish eligibility at the time of filing the petition. If the Petitioner had no store manager and no e-commerce manager at the time of filing, then its plans to fill those positions in the future do not establish eligibility at the time of filing. The Petitioner asserts that the Beneficiary oversaw a professional employee, specifically the company's marketing manager. In our prior decision, we stated: [T]he marketing manager does not manage or supervise any subordinate employees, and his job duties do not reflect any managerial duties. . . . The petitioner has not demonstrated that the marketing manager position meets the statutory definition of professional. Therefore, we cannot conclude that the marketing manager functions in a professional, managerial, or supervisory role. The Petitioner, on motion, asserts that the marketing manager position is a professional position that requires a bachelor's degree. The Petitioner asserts that the position pays $36,000 per year, although the quarterly reports show that the Petitioner paid the marketing manager $27,050 in 2013. The shortfall is not due to a mid-year hiring date; the marketing manager's name appears on all four 2013 quarterly reports, showing payments of $5,000, $7,500, $9,550, and $5,000 for those quarters.
  9. 9. Matter ofABCF-, LLC The Petitioner submits what it calls "[p]rintouts of job announcements for comparable positions all requiring bachelor's degrees." One announcement, for an "Online Marketing Manager," indicates that the position requires a bachelor's degree. The other announcement, for a "Manager of Email Marketing Services" (and which), states only that a bachelor's degree is "preferred." The Petitioner does not demonstrate that these positions are comparable to its own marketing manager position. Both job announcements refer to leadership of "teams," which the Petitioner does not appear to have. Also, the "Manager of Email Marketing Services" position offers a much higher salary ($80,000 to $130,000 per year) than the $36,000 per year that the Petitioner claims on appeal (or the $27,050 that the Petitioner actually paid in 2013). The job announcements submitted on motion do not show that the marketing manager position at the petitioning company is a managerial, supervisory, or professional position. Furthermore, the Petitioner, on motion, does not establish how much time the Beneficiary allocates to overseeing the marketing manager. Even if the Petitioner had established that this subordinate employee is a professional or manager, the record still would not establish that the Beneficiary's position requires him to primarily perform managerial duties. The Petitioner has introduced new facts through the materials submitted on motion, but the Petitioner has not shown that these new facts warrant reopening the proceeding or establish the Beneficiary's eligibility for the immigrant classification sought in this proceeding. The quarterly tax returns shed additional light on the Petitioner's staffing in 2013, but do not show that the Beneficiary had sufficient subordinate staff to relieve him from primarily performing non-qualifying operational tasks. The documentation regarding the recent growth and development of the Petitioner's businesses does not address the issues underlying the dismissal of the appeal. The job announcements are of limited relevance, and the Petitioner submitted those announcements in service of a claim (regarding the Beneficiary's managerial status) that the Petitioner had specifically repudiated on appeal. For these reasons, the materials submitted on motion do not show proper cause to reopen the proceeding. III. CONCLUSION The motion will be denied for the above stated reasons. In visa petition proceedings, it is the Petitioner's burden to establish eligibility for the immigration benefit sought. Section 291 of the Act, 8 U.S.C. § 1361; Matter ofOtiende, 26 I&N Dec. 127, 128 (BIA 2013). Here, the Petitioner has not met that burden. ORDER: The motion to reopen is denied. Cite as Matter ofABCF-, LLC, ID# 16160 (AAO Mar. 29, 2016)
  10. 10. w.~~.z damdfJdlllte ~ ckafi_~ JOW~t~ lnYUiorJ ofllf!JWJDal~ U.S. Department ofHomeland Security 20 Massachusetts Ave., NW, Rm. A3042 Washington, DC 20529 U.S. Citizenship and Immigration Services ·,·.... .EB 15 2005- File: SRC-02-275-50535' Office: TEXAS SERVICE CENTER Date: IN RE: Petitioner: Petition:· ontnum~ant Pursuant to Section 101(a)(l5)(L) ofthe Immigration and Nationality Act, 8 D.S.C. § 1101(a)(15)(L) IN BEHALF OF PETITIONER: 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, Direc dministrative Appeals Office www.uscis.gov
  11. 11. SRC-02-275-50535 Page 2 DISCUSSION: The Director, Texas Service Center, denied the petition for a nonimmigrant visa. The matter is now before the Administrative Appeals Office (AAO) on appeal. The AAO will dismiss the appeal. The petitioner filed this nonimmigrant petition seeking to extend the employment of its President as an L-lA nonimmigrant intracompany transferee pursuant to section 101(aX15)(L) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 110l(a)(15)(L). The petitioner is a limited liability company organized in the State of Texas that operates a discount store. The petitioner claims that it is the affiliate of located in India. The beneficiary was initially granted a one-year period of stay to open a new office in the United States and the petitioner now seeks to extend the beneficiary's stay. The director denied the petition concluding that the petitioner did not establish that: (1) the beneficiary will be employed in the United States in a primarily managerial or executive capacity; (2) the petitioner has a qualifying relationship with the beneficiary's foreign employer; (3) the foreign entity is doing business; (4) the petitioner is doing business; and (5) the beneficiary will depart the United States upon completing his stay in L-lA status. 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: (1) the beneficiary will be employed in a primarily managerial or executive capacity; (2) the petitioner is an affiliate of the beneficiary's foreign employer due to common ownership; (3) the petitioner has been doing business since December 2001; and (4) it is unclear why CIS seeks the beneficiary's return to India, as "Dual Intent" is permitted. In support of these assertions, counsel submits a brief, additional evidence, and previously submitted documents. 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. The regulation at 8 C.F.R. § 214.2(1)(3) states that an individual petition filed on Form I-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.
  12. 12. SRC-02-275-50535 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 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 regulation at 8 C.F.R. § 214.2(1)(14)(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)(l)(ii)(G) of this section; (B) Evidence that the United States entity has been doing business as defined in paragraph (l)(l)(ii)(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; (D) 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 management or executive capacity; and (E) Evidence of the financial status ofthe United States operation. The first issue in the present matter is whether the beneficiary will be employed by the United States entity in a primarily managerial or executive capacity. Section 10l(a)(44)(A) of the Act, 8 U.S.C. § 1101(a)(44)(A), defmes the term ..managerial capacity" as an assignment within an organization in which the employee prhnarily: (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;
  13. 13. SRC-02-275-50535 Page4 (iii) if another employee or other employees are directly supervised, has the authority to hire and frre 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 frrst 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. § 110l(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 s'upervision or direction from higher level executives, the board of directors, or stockholders of the organization. In the petition filed on September 24, 2002, the petitioner described the beneficiary's job duties as follows: The Beneficiary will conti~ue to be employed as the President of the Petitioner, and will be responsible for performing the following duties~ setting and establishing the company's goals and objectives; reviewing locations for the establishment of additional retail outlets; reviewing and analyzing market conditions; directing and managing the company; reviewing and approving budgets; reviewing and approving inventory orders prepared by subordinate staff; reviewing and approving marketing strategy; establishing sales and marketing goals and overseeing implementation of such goals; supervising and controlling work of subordjnate managers and supervisors; hiring and flring managers and supervisors; and reviewing financial records prepared by professional staff. In performance of his duties, the Beneficiary will receive minimum supervision from the other members of the Board of Directors, and the Beneficiary will exercises [sic] wide discretion and latitude in the performance of his duties. On November 9, 2002, the director requested additional evidence. Pertaining to the beneficiary's prospective employment, the director requested: {1) a description of the petitioner's staffing, including the beneficiary's job, in 2001 and 2002 including names~ titles~ duties, qualifications, hiring dates, salaries or hourly wages, hours worked per week, and dates of termination; (2) the petitioner's 2001 Form 940-EZ. Employer's Annual
  14. 14. SRC-02-275-50535 Page5 Federal Unemployment (PUTA) Tax Return; (3) the petitioner's 2001 Fonns W-3; and (4) the beneficiary's Forms W-2 and 1040 for 2000, 2001, and 2002. In a response dated January 27, 2003, the petitioner submitted: (1) the petitioner's 2001 Form 940-EZ; (2) the petitioner's 2001 W-3; (3) a letter describing the beneficiary's prospective duties; (4) the petitioner's IRS Form 941, Employer's Quarterly Federal Tax Return, for the fourth quarter of 2001; (5) the petitioner's Texas State Quarterly returns containing the petitioner's payroll summary for the second and third quarters of 2002; and (6) a letter describing the beneficiary's duties and the petitioner's staffing. In the letter, the petitioner largely restated previously provided information in discussing the beneficiary's duties as follows: The Beneficiary will continue to be emPloyed as the President of the Petitioner, and will be responsible for performing the following duties for the Petitioner; such duties to include: twenty-five percent (25%) of his time setting and establishing the company's goals and objectives and reviewing locations for the establishment of additional retail outlets; twenty percent (20%) reviewing and analyzing market conditions, and directing and managing the company; twenty percent (20o/o) reviewing and approving budgets, and reviewing inventory orders prepared by subordinate staff; twenty percent (20%) reviewing and approving marketing strategy, establishing sales and marketing goals and overseeing implementation of such goals; and twenty percent (20%) supervising and controlling work of subordinate managers and supervisors, hiring and firing managers and supervisors, and reviewing financial records prepared by professional staff. In performance of his duties, ~e Beneficiary will receive minimum supervision from the Board of Directors, and the Beneficiary will exercise wide discretion and latitude in the performance of his duties. The Beneficiary will be in charge of supervising one (1) Manager. The Beneficiary's duties are solely supervisory, and he is not engaged in any day-to-day non-supervisory activities. The petitioner's letter described the positions of the beneficiary's alleged subordinates as follows: ~anager Employed since July 2002 Duties Include: supervising subordinate employees; training workers in performance of duties; assigning and coordinating work of subordinate employees; preparing marketing strategy; responsible for ordering; purchasing and maintaining inventory; prepare employee work schedule; and prepare sales, expense and inventory reports. Cashier Employed since January 2002 Duties include: assist customers; cleans work area, equipment and service area; maintains beverage machine; stocks inventory; operates cash register and credit card machine; and reconciles daily cash receipts.
  15. 15. SRC-02-275-50535 Page6 On May 23~ 2003, the director denied the petition. In part, the director determined that the petitioner did not establish that the beneficiary will be employed in the United States in a primarily managerial or executive capacity. On appeal, counsel for the petitioner asserts that the beneficiary will be employed in a primarily managerial or executive capacity. Counsel asserts that, "[a]s the President of the Petitioner, the Beneficiary is responsible for not only overseeing the management of the retail location, but also reviewing additional retail locations. The Beneficiary's position will be solely executive or managerial and does not include day-to-day work of the business." Counsel quotes the statutory and regulatory definitions for executive and managerial capacity, as well as the previously provided job description for the beneficiary. Counsel further discusses the beneficiary's duties as follows: By reviewing and analyzing market conditions; reviewing and approving budgets and marketing strategy, and establishing sales and marketing, and overseeing implementation of such; the Beneficiary will primarily be responsible for managing the Marketing "department, function or component" of the Petitioner as he will devote more than Sixty Percent (60o/o) of time to these activities. Furthermore, by setting and establishing the company's goals and objectives and reviewing locations for the establislunent of additional retail outlets and reviewing financial reports prepared by professional [sic], the Beneficiary will primarily supervise and control other supervisory, professional or managerial employees, including the Store Managers. The Beneficiary is responsible for seeking additional retail locations for the Petitioner, thus the Beneficiary directs the major component or function of the Petitioner's efforts to expand its retail operations. The Beneficiary has and will have authority to recommend personnel actions, such as promotions, hiring, and firing of personnel supervised by hi~ and he has and will continue to have wide authority and discretion over the marketing department and major component and function of the Petitioner. Counsel cites National Hand Tool Corp. v. Pasquarell, 889 F.2d 1472, n.2 (5th Cir. 1989), and Mars Jewelers, Inc. v. INS, 702 F.Supp. 1570, 1573 (N.D. Ga. 1988), to stand for the proposition that the small size of a petitioner will not, by itself, undermine a finding that a beneficiary will act in a primarily managerial or executive capacity. Counsel references an unpublished AAO decision to support the assertion that "[a] person may be a manager or executive even [if] he is the sole employee of the company where he utilizes outside independent contractors or where the business is complex; he may be a function manager." Upon review, counsel's assertions are not persuasive. 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.P.R. § 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. A beneficiary may not claim to be employed as a hybrid "executive/manager" and rely on partial sections of the two statutory definitions.
  16. 16. SRC-02-275-50535 Page 7 In the instant case, the petitioner does not clearly state whether the beneficiary will perform managerial or executive tasks. Counsel discusses the beneficiary's managerial responsibility over two subordinates, yet counsel quotes the regulatory definition for executive capacity. Counsel further states that "[t]he Beneficiary's position will be solely executive or managerial," and indicates that the beneficiary can be considered a function manager. Thus, it appears that counsel intends to represent that the beneficiary will be primarily engaged in both managerial duties and executive duties. Therefore, the petitioner must establish that the beneficiary meets each of the four criteria set forth in the sta!utory definition for executive duties under section 10l(a)(44)(B) of the Act, and the statutory defmition for managerial duties under section 101(a)(44)(A) of the Act. The job description submitted by the petitioner is vague, providing little insight into the true nature of the tasks the beneficiary will perform in the United States. For example, the statements that the beneficiary will be responsible for "setting and establishing the company's goals and objectives" and "directing and managing the company" provide no indication of the actual tasks the beneficiary will perform on a daily basis. The petitioner indicates that the beneficiary will be responsible for "reviewing and approving budgets." Yet, the petitioner has not indicated who prepares the budgets that the beneficiary will purportedly review and approve. Thus, regarding this task, it is unclear whether the beneficiary will prepare the budgets himself, or review the work of subordinate employees. Counsel repeatedly refers to the beneficiary's responsibility of reviewing locations for the establishment of additional retail outlets, yet this task has not been sufficiently described in order to determine whether it is a qualifying duty. The record does~ not indicate whether the beneficiary is merely checking real estate listings for available locations, or performing more sophisticated research and cost benefit analysis. Specifics are clearly an important indication of whether a beneficiary's duties are primarily executive or managerial in nature, otherwise meeting the definitions would simply be a matter of reiterating the regulations. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1103 (E.D.N.Y. 1989), aff'd, 905 F.2d 41 (2d. Cir. 1990). The actual duties themselves reveal the true nature of the employment. /d. The provided job description does not allow the AAO to sufficiently determine the actual tasks that the beneficiary will perform, such that they can be classified as managerial or executive in nature. The petitioner indicates that the beneficiary has been, and will continue to be, employed as its president. However, the evidence of record contains inconsistencies regarding who is acting as president. The beneficiary began work with the petitioner in L-lA status on September 25, 2001. Yet, the petitioner's 2001 Form W-3, Transmittal of Wage and Tax Statements, was signed b~n January 18,2002, with an indication that he holds the title of President. Numerous other offi~i~ts bear -signature, such as the petitioner's 2001 Form 940-EZ and IRS Forms 941, Employer's Quarterly Federal Tax Return, for the fourth quarter of 2001 and third quarter of 2002. This evidence suggests that - is the true president. 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 has failed to resolve these inconsistencies. Further, these inconsistencies call into question provided for the beneficiary represents the beneficiary's true duties, or the duties cast on any aspect ofthe petitioner's proof may, of
  17. 17. SRC-02-275-50535 Page 8 course, lead to a reevaluation of the reliability and sufficiency of the remaining evidence offered in support of the visa petition. Matter ofHo, 19 I&N Dec. at 591 (BIA 1988). Counsel states that "the Beneficiary will primarily supervise and control other supervisory, professional or managerial employees, including the Store Managers." Although the beneficiary is not required to supervise personnel, if it is claimed that his duties involve supervising employees, the petitioner must establish that the subordinate employees are supervisory, professional, or managerial. See§ 10l(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 10l(a)(32) of the Act, 8 U.S.C. § 1101(a)(32), states that "[t]he term profession shall include but not be limited to architects, engineers, lawyers, physicians, surgeons, and teachers in elementary or secondary schools, colleges, academies, or semi11:aries." 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. 817 (Comm. 1988); Matter of Ling, 13 I&N Dec. 35 (R.C. 1968); Matter ofShin, 11 I&N Dec. 686 (D.D. 1966). Though requested by the director, the petitioner did not provide the qualifications of its manager or its cashier. Any failure to submit requested evidence that precludes a material line of inquiry shall be grounds for denying the petition. 8 C.F.R. § 103.2(b)(l4). Thus, the petitioner has not established that these employees possess or require a bachelor's degree, such that they could be classified as professionals. As the cashier has no subordinates or managerial authority, it is clear that he is not a managerial or supervisory employee. The petitioner claims to employ a manager with supervisory responsibility over the cashier. Though this employee carries the title of manager, the petitioner has not clearly defined a department or function of the petitioner's operations that this individual manages, such that he could be classified as managerial employee. The fact that the manager has authority over the cashier qualifies him as a supervisory employee, such that the beneficiary has a subordinate that is supervisory. See section 101(a)(44)(A)(ii) of the Act. However, the fact that the beneficiary has a supervisory subordinate does not relieve the petitioner's burden to show that the beneficiary is primarily engaged in managerial or executive duties. See sections 101{a)(44)(A) and (B) of the Act. The petitioner indicates that the beneficiary only spends 20 percent of his time "supervising and controlling work of subordinate managers and supervisors, hiring and firing managers and supervisors." Thus, the fact that he has a supervisory subordinate does not establish that he is primarily engaged in managerial or executive duties. Counsel asserts that the beneficiary can be considered a function manager. Whether the beneficiary is an "activity" or "function" manager turns in part on whether the petitioner has sustained its burden of proving that his duties are "primarilf' managerial. As discussed above, here the petitioner has failed to establish that the beneficiary is primarily engaged in managerial or executive duties. Thus, the petitioner has not shown that the beneficiary is primarily performing the duties of a function manager. See IKEA US, Inc. v. U.S. Dept. ofJustice, 48 F. Supp. 2d 22, 24 (D.D.C. 1999).
  18. 18. SRC-02-275-50535 Page9 Counsel references an unpublished AAO decision involving an employee of the Irish Dairy Board to support the assertion that "[a] person may be a manager or executive even [if] he is the sole employee of the company where he utilizes outside independent contractors or where the business is complex; he may be a function manager." Counsel has furnished no evidence to establish that the facts of the instant petition are analogous to those in the Irish Dairy Board matter. Furthermore, while 8 C.F.R. § 103.3(c) provides that AAO precedent decisions are binding on all CIS employees in the administration of the Act, unpublished decisions are not similarly binding. Counsel cites National Hand Tool Corp. v. Pasquarell, 889 F.2d 1472, n.2 (5th Cir. 1989}, and Mars Jewelers, Inc. v. INS, 702 ·F.Supp. 1570, 1573 (N.D. Ga. 1988), to stand for the proposi~ion that the small size of a petitioner will not, by itself, undermine a finding that a beneficiary will act in a primarily managerial or executive capacity. Counsel has furnished no evidence to establish that the facts of the instant petition are analogous to those in National Hand Tool Corp. v. Pasquarell or Mars Jewelers, Inc. v. INS. It is noted that both of the cases cited by counsel relate to immigrant visa petitions, and not the extension of a "new office" nonimmigrant visa. As the new office extension regulations call for a review of the petitioner's business activities and staffing after one year, the cases cited by counsel are distinguishable based on the applicable regulations. See 8 C.F.R. § 214.2(1)(14)(ii). Additionally, in contrast to the broad precedential authority of the case law of a United States circuit court, the AAO is not bound to follow the published decision of a United States district court in matters arising within the same district. See Matter of K-S-, 20 I&N Dec. 715 (BIA 1993). Although the reasoning underlying a district judge's decision will be given due consideration when it is properly before the AAO, the analysis does not have to be followed as a matter of law. ld. at 719. As counsel has not discussed the facts of any of the cited matters, they will not be considered in this proceeding. Yet, counsel correctly observes that a company's size alone may not be the determining factor in denying a visa to an intracompany transferee. See section 101(a)(44)(C}, 8 U.S.C. § 110l(a)(44)(C). However, it is appropriate for CIS to consider the size of the petitioning company in conjunction with other relevant factors, such as a company's small personnel size, the absence of employees who would perform the non-managerial or non-executive operations of the company, or a "shell company" that does not conduct business in a regular and continuous manner. See, e.g. Systronics Corp. v. INS, 153 F. Supp. 2d 7, 15 (D.D.C. 2001). As required ·by section 101(a)(44)(C) of the Act, if staffing levels are used as a factor in determining whether an individual is acting in a managerial or executive capacity, CIS must take into account the reasonable needs of the organization, in light of the overall purpose and stage of development ofthe organization. The petitioner has not articulated how the reasonable needs of the operation will be satisfied with the beneficiary acting in a primarily managerial or executive capacity. The petitioner operates a discount store. Thus, it is evident that the reasonable needs of the petitioner require its employees to perform numerous non- managerial and non-executive tasks such as answering questions for customers, operating a cash register, ordering and stocking merchandise, tracking inventory, receiving shipments and interacting with vendors, paying bills and managing a checkbook, reconciling daily cash receipts, and providing custodial services. The petitioner has not indicated the hours of operation for its discount store. However, for the sake of analysis, the AAO will assume the hours are !O:OOAM to 9:00PM, Monday through Saturday, and 12:00PM through 6:00PM on Sunday. Thus, the petitioner's discount store is open for business 72 hours per week. The
  19. 19. SRC-02-275-50535 Page 10 most wages that the petitioner has paid in a given quarter occurred during the third quarter of 2002. The petitioner's payroll document for the third quarter of 2002 reflects that the beneficiary's subordinates were paid a total of $3,400, for a combined average of $261.54 per week ($3,400 divided by 13 weeks equals $261.54.) If these two employees were compensated at the federal minimum wage, $5.15 per hour, their wages reflect that they worked a maximum combined total of 51 hours per week ($261.54 divided by $5.15 equals 51.) As the petitioner's discount store is assumed to be open 72 hours per week, the above calculation reveals that the beneficiary is the only employee working in the store for 21 hours per·week. Thus, the beneficiary must commit a minimum of 21 hours per week to directly performing the non-managerial duties necessary to operate a discount store. Thus, the reasonable needs of the petitioner suggest that the beneficiary must spend a significant amount of time performing the tasks necessary to provide the petitioner's services. An employee who primarily performs the tasks necessary to produce a product or to provide services is not considered to be employed in a managerial or executive capacity. Mauer of Church Scientology International, 19 I&N Dec. 593, 604 (Comm. 1988). The petitioner has failed to establish that these non- managerial and non-executive tasks do not constitute the majority of the beneficiary's time. See 8 C.F.R. § 214.2(1)(3)(ii). Based on the foregoing, the record is not persuasive in demonstrating that the beneficiary will be employed in a primarily managerial or executive capacity. The petitioner rriust 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 ofMichelin Tire Corp., 17 I&N Dec. at 248. Furthermore, 8 C.P.R. § 214.2(1)(3)(v)(C) allows the intended United States operation one year within the date of approval of the petition to support an executive or managerial position. There is no provision in CIS regulations that allows for an extension of this one-year period. If the business is not sufficiently operational after one year, the petitioner is ineligible by regulation for an extension. In the instant matter, the petitioner has not reached the point that it can employ the beneficiary in a predominantly managerial or executive position. Accordingly, the petitioner has not established that the beneficiary will be employed in a primarily or managerial capacity, as required by 8 C.F.R. § 214.2(1)(3); For this reason, the appeal will be dismissed. The second issue in this proceeding is whether the petitioner has established that it has a qualifying relationship with the beneficiary's foreign employer as required by 8 C.P.R. § 214.2(1)(14)(ii)(A). Further, the director found that the petitioner failed to establish that it and the foreign entity had been doing business over the one-year period prior to filing. See 8 C.F.R. § 214.2(1)(14)(ii)(B). The regulation at 8 C.F.R. § 214.2(l)(ii)(G)(2) reflects that, in order for an entity to be considered a qualifying organization, the petitioner must show that it: Is or will be doing business (engaging in international trade is not required) as an employer in the United States and at least one other country directly or through a parent, branch, affiliate, or subsidiary for the duration of the alien's stay in the United States as an intracompany transferee .... The regulation at 8 C.F.R. § 214.2(l)(ii)(H) defines the term "doing business" as:
  20. 20. SRC-02-275-50535 Page 11 [T]he regular, systematic, and continuous provision of goods and/or services by a qualifying organization and does not include the mere presence of an agent or office of the qualifying organization in the United States and abroad. Thus, the matters of whether the petitioner and foreign entity have been doing business over the last year are integral to whether the petitioner and foreign entity possess a qualifying relationship. Therefore, the AAO will address all three matters simultaneously. In the initial petition, the petitioner asserted that the foreign entity is one hundred percent owned and controlled by the beneficiary, and the petitioner is majority owned and controlled by the beneficiary. Thus, the petitioner alleged that the two entities are affiliates. The petitioner described the foreign entity's business as a restaurant. The petitioner operates a discount store. To support these assertions, the petitioner submitted: (1) the foreign entity's Sales Tax.Registration dated February 19, 1996; (2) a letter from an attorney for the foreign entity dated May 30, 2000, indicating that the beneficiary operates the foreign entity as a sole proprietorship; (3) an undated letter from the State Bank of India, indicating that the beneficiary was "maintaining a good balance with regular operations"; (4) a letter from the State Bank of India, dated March 1, 2000, indicating that the beneficiary was "maintaining a good balance with regular operations"; (5) a menu from the foreign entity's restaurant; (6) invoices reflecting that the foreign entity purchased signage, equipment, and soy bean oil in the year prior to filing the petition; (7) invoices for food items that fail to note the purchaser of the goods; (8) copies of the foreign entity's business license and permit, dated in 1989 and 1992; (9) an illegible document purportedly pertaining to the foreign entity's operation; (10) an untranslated financial statement for the foreign entity, dated August 31, 2001, that provides values in rupees; (11) a Certificate of Amendment for the petitioner, reflecting that it amended its charter on March 11, 2001 to show that two companies will serve as the "managers"~ (12) two stock certificates for the petitioner, dated May 11, 2001; (13) a lease for the petitioner, signed by (14) the petitioner's 2001 IRS Form 1065, U.S. Return of Partnership Income; (15) a financial statement for the petitioner dated June 30, 2002; and (16) bank statements for the petitioner covering the period from November 30,2001 to June 30, 2002. In the director's request for evidence, in part she requested: (1) certificates of current status of the petitioner and foreign entity; (2) the SS-4 and EIN assignment notice for the petitioner; (3) the petitioner's IRS Form 1120 annual return for 2001; (4) Form 5472 Information Return Foreign Owned Corporation; (5) sales invoices, cash register tapes, and other evidence that the petitioner conducted business from September 2001 to September 2002; (6) the petitioner's state and federal quarterly returns for 2001 and 2002; (7) the petitioner's Form 940-EZ and W-3s for 2001; (8) documentation of the petitioner's rent payments from September 2001 to September 2002; (9) the petitioner's bank statements for 2001 and 2002; (10) a sales tax certificate, insurance policies, licenses and pennits for all of the petitioner's business locations in 2001 and 2002; (11) the petitioner's utility bills for business locations in 2001 and 2002; (12) evidence of the foreign entity's business operations, including sales invoices, cash register tapes, and other evidence; (13) the foreign entity's telephone bills; (14) the foreign entity's current menu; (15) the foreign entity's monthly tax returns for 2002; and (16) documentation of the foreign entity's staffing in 2001 and 2002 including names, titles, duties, qualifications, dates of hire, compensation, hours worked, and date terminated for all employees.
  21. 21. SRC-02-275-50535 Page 12 In its response, the petitioner provided: (1) the petitioner's certificate of organization, dated May 2, 2001; (2) the petitioner's articles of organization; (3) the petitioner's Form SS-4; (4) a certificate of account status for the petitioner by the Texas Comptroller for the County of Travis, dated December 19, 2002; (5) invoices reflecting that the petitioner purchased goods, dated April 12, May 1, May 29, July 2, July 5, July 8,and July 18, 2002; (6) the petitioner's Texas State Quarterly filings for the fourth quarter of 2001, and the first, second, and third quarters of 2002; (7) the petitioner's IRS Form 941, Employer's Quarterly Federal Tax Return, for the fourth quarter of 2001; (8) the petitioner's 2001 lRS Form 940-EZ; (9) the petitioner's 2001 Form W-3; (10) bank statements for the petitioner covering the period from June 30, 2001 to September 30, 2002; (11) the petitioner's food dealer permit covering the period from October 17, 2002 to October 17, 2003; (12) the petitioner's alarm permit dated January 15, 2003; (13) the petitioner's Texas Sales and Use Tax Permit, dated June 1, 2001; (14) the petitioner's Texas Cigarette and/or Tobacco Products Permit, dated June 1, 2002; (15) a rent bill for the petitioner's leased space, dated February 1, 2002; (16) a sampling of the petitioner's 2002 utility bills; (17) numerous receipts for goods and food items purchased by the foreign entity in 2001 and 2002; (18) a sampling of the foreign entity's utility bills during 2001 and 2002; (19) a bank statement for the foreign entity dated December 6, 2002; (20) a financial statement for the foreign entity, covering the fiscal year ending March ~1, 2002; (21) a statement from the foreign entity indicating that the beneficiary is the sole proprietor of the organization; (22) a list of the foreign entity's employees, including their titles and compensation; (23) the beneficiary's 2001 Form W-2; and (24) previously submitted evidence. In the director's decision, she found that the petitioner failed to establish that: (1) it has a qualifying relationship with the beneficiary's foreign employer; (2) the foreign entity is doing business; and (3) the petitioner is doing business. Specifically, the director concluded that the evidence of record does not show that the beneficiary owns and controls the petitioner and the foreign entity. The director noted that the company names for the petitioner and foreign entity are presented with numerous variations in the documentation submitted. The director stated that the petitioner submitted no documentation to show that the beneficiary continues to own and control. the foreign entity. The director noted that a portion of the petitioner's invoices Jist the contact person as "Faruq," yet the petitioner has not shown that it employs an individual by that name. The director pointed out that the petitioner's annual and quarterly returns all report a different address than the one provided in the petition, calling into question whether the petitioner operates at the Beechnut location as claimed. The director noted that the stock certificates issued by the petitioner state that it is a corporation, not a partnership. The director further indicated that the petitioner failed to provide partnership federal returns, individual returns f i - reach artner, or the percent each partner owns. The director stated that the evidence strongly suggests that ontrols the petitioner, as his signature appears on the petitioner's official documents and filings, an e serves - sthe uarantor of the petitioner's lease. The director stated that, while the provided evidence supports that perates a dollar store that is doing business, evidence does not suggest that the petitioner has been omg usiness during the previous year as described. The director found that the petitioner has failed to show that the foreign entity continues to operates its restaurant, as the beneficiary has not returned to India since entering the United States on December 18, 1998. On appeal, counsel asserts that the petitioner is an affiliate of the beneficiary's foreign employer due to common ownership, and the petitioner has been doing business since December 2001. Counsel reiterates that the petitioner is majority owned and controlled by the beneficiary, and the beneficiary is the sole proprietor of
  22. 22. SRC-02-275-50535 Page 13 the foreign entity, thus they are affiliates. Counsel lists various business activities of the petitioner that occurred in December 2001, and asserts that the petitioner has been doing business on a continuous basis since that time. Counsel notes that the petitioner's share certificates provide that it is a corporation due.to a typographical error. In support of these assertions, counsel submits: (1) a letter from the States Bank of India noting_ that the beneficiary is the sole proprietor of the foreign entity, dated January 6, 2003; (2) receipts for the petitioner's payment of Texas Sales and Use taxes for January, February, March, April, and May 2003; (3) bank statements for the petitioner covering the period from September 30, 2002 to May 31, 2003; (4) the petitioner's IRS Forms 941, Employer's Quarterly Federal Tax Return, for the fourth quarter of 2001 and the first quarter of 2003; (5) the petitioner's Texas State Quarterly filings for the fourth quarter of 2002 and the first quarter of 2003; (6) a sampling of the petitioner's 2003 utility bills; (7) an untranslated document purportedly pertaining to the foreign entity; and (8) previously provided evidence. Upon review, the petitioner has failed to establish that it has a qualifying relationship with the foreign entity. As provided above, the regulation at 8 C.P.R. § 214.2(l)(ii)(G)(2) states that, in order for an entity to be considered a qualifying organization, the petitioner must show that it is doing business. The director found that the petitioner failed to show that it has been doing business over the previous year. The director's decision turned on whether the petitioner conclusively established that it operated the discount store represented in the submitted documentation. The director found that a discount store did indeed operate at the petitioner's stated address, ouston, Texas. However, due to discrepancies in the petitioner's name and address in p nee, the director concluded that the petitioner was a separate organization from the store represented in the record. Thus, the director concluded that the submitted documentation of business activity did not apply to the petitioner, and therefore the petitioner failed to show that it has been doing business over the previous year. Upon reviewing the petitioner's documentation, the AAO notes that the petitioner's name is presented with several variations on purchase receipts. As these receipts are likely written by the petitioner~s vendors, not the petitioner, the AAO finds these discrepancies insignificant. Further, the petitioner's name is written consistently on all official documents submitted, including numerous tax filings. Thus, the variations in the petitioner's name do not undermine that the evidence of record pertains to the petitioner's business activity. The director further noted that many of the petitioner's documents reflect a different address for the petitioner. The petitioner has indicated that the alternate address is the home address of the beneficiary. Given the small size of the petitioner's operation, the AAO finds it plausible that the petitioner would use one of the employee's home addresses for official correspondence. Thus, the AAO fmds that the use of an alternate address does not undermine that the petitioner operates a discount store at Texas. Accordingly, the AAO concludes that the petitioner is the same in the documentation of business activity. The director concluded that the evidence of record was sufficient to show that a discount store has operated at the petitioner's address for the previous year. The AAO agrees, and finds that the operated discount store is in fact the petitioner. .Accordingly, the AAO finds that the petitioner has established that it has been doing business for the previous year as required by 8 C.P.R. § 214.2(1)(14)(ii)(B). The director's decision on this issue will be withdrawn.
  23. 23. SRC-02-275-50535 Page 14 The director found that the petitioner failed to establish that the foreign entity has been doing business over the previous year. The petitioner failed to address this fmding on appeal. However, upon review the AAO finds that the petitioner submitted sufficient documentation to show that the foreign entity was doing business during the one-year period prior to filing the petition. The director's decision on this issue will be withdrawn. Despite the fact that both the petitioner and foreign entity were doing business, the petitioner has not established that they have a qualifying relationship. The regulation and case law confrrm that ownership and control are the factors that must be examined in determining whether a qualifying relationship exists between United States and foreign entities for purposes of this visa classification. Matter of Church Scientology International, 19 I&N Dec. 593 (BIA 1988); see also Matter ofSiemens Medical Systems, Inc., 19 I&N Dec. 362 (BIA 1986); Matter of Hughes, 18 I&N Dec. 289 (Comm. 1982). In context of this visa petition, ownership refers to the direct or indirect legal right of possession ofthe assets of an entity with full power and authority to control; control means the direct or indirect legal right and authority to direct the establishment, management, and operations of an entity. Matter ofChurch Scientology International, 19 I&N Dec. at 595. As the dir~ the evidence of record suggests that - not the beneficiary, controls the petitioner.- s the · the petitioner's official documents, including govemme • .t. • • and the petitioner's lea listed as the guarantor of the petitioner's lease obligation is the signor and only partnership member listed on the petitioner's Form SS-4, Application for Employer Identification Number. Conversely, the only documents from the petitioner that are signed by the beneficiary are letters in connection with this immigration proceeding. Though the director explicitly noted these facts, on appeal counsel responds with a conclusory statement that both entities are owned and controlled by 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 Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm. 1972). Without documentary evidence to support the claim, the assertions of counsel will not satisfy the petitioner's burden of proof. The assertions of counsel do not constitute evidence. Matter of Obaigbena, 19 I&N Dec. 533, 534 (BIA 1988); Matter Of Laureano, 19 I&N Dec. 1 (BIA 1983); Matter of Ramirez-Sanchez, 17 I&N Dec. 503,506 (BIA 1980). The petitioner provided two stock certificates that indicate that the petitioner is a corporation "authorized to issue 1,000 shares of Common Stock No Par Value." The director noted that these certificates are inconsistent with the petitioner's claim to be a partnership. 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). On appeal counsel responds by stating "please note that the word 'corporation' on the share certificates is only a typographical error." The petitioner neither provides new objective evidence nor references evidence in the record to clarify this inconsistency. Again, the assertions of counsel do not constitute evidence. Matter of Obaigbena, 19 I&N Dec. 533, 534 (BIA 1988); Matter OfLaureano, 19 I&N Dec. 1 (BIA 1983); Matter ofRamirez-Sanchez, 17 I&N Dec. 503, 506 (BIA 1980). Thus, the two stock certificates contradict the petitioner's claim to be a partnership owned and controlled by the beneficiary.
  24. 24. SRC-02-275-50535 Page 15 Further, despite the director's request, the petitioner failed to provide the beneficiary's IRS Forms 1040 for 2000, 2001, and 2002. These forms would have revealed whether the beneficiary received income from a partnership, thus helping to illuminate whether he has an ownership interest in the petitioner. Failure to submit requested evidence that precludes a material line of inquiry shall be grounds for denying the petition. 8 C.P.R. § 103.2(b)(14). The AAO notes that the petitioner submitted untranslated documents that may provide information regarding the ownership and control of the petitioner and foreign entity. Because the petitioner failed to submit certified translations of the documents, the AAO cannot determine whether the evidence supports the petitioner's claims. See 8 C.P.R. § 103.2(b){3). Accordingly, the evidence is not probative and will not be accorded any weight in this proceeding. Based on the foregoing, the petitioner has not established that it has a qualifying relationship with the foreign entity as required by 8 C.F.R. § 214.2(1)(14)(ii){A). For this additional reason, the appeal will be dismissed. The third issue in this proceeding is whether the petitioner has established that the beneficiary's employment in the United States is for a temporary period. In the support letter submitted with the petition, the petitioner stated that "[w]e understand the teriijx>rary nature of this assignment as does the Beneficiary." The director did not address this issue in her request for evidence. In the director•s decision, she found that "the evidence of record suggests that the self-petitioner does not intend to return to an assignment abroad at the end of his stay." On appeal, counsel states that, "[s]ince recognition of 'Dual Intent' by the Immigration and Naturalization Service, in accordance with changes made to the INA in the 1990's, it is unclear why the District Director is seeking the Beneficiary's return to India as a condition of approving the L-1." Counsel's statement does not sufficiently address this issue. The petitioner indicates that the beneficiary is the sole owner of the foreign entity, and the majority owner of the petitioner. If this fact is established, it remains to be determined that the beneficiary's services are for a temporary period. The regulation at 8 C.P.R. § 214.2(1)(3)(vii) states that if the beneficiary is an owner or major stockholder of the company, the petition must be accompanied by evidence that the beneficiary•s .services are to be used for a temporary period and that the beneficiary will be transferred to an assignment abroad upon the completion of the temporary services in the United States. In the absence of persuasive evidence, it cannot be concluded that the beneficiary's services are to be used temporarily or that he will be transferred to an assignment abroad upon completion of his services in the United States. The sole evidence that the beneficiary is to be employed for a temporary period is the petitioner's ambiguous statement that "[it] understand[s] the temporary nature of this assignment as does the Beneficiary." Despite the director's decision on this issue, on appeal the petitioner failed to supplement the record or assert that the beneficiary intends to return abroad upon the completion of his stay in L-1A status. The concept of dual intent does not relieve the petitioner from the burden of showing that the beneficiary•s stay in L-lA status is for a temporary period. Thus, the petitioner has not established that the
  25. 25. SRC-02-275-50535 Page 16 beneficiary's employment is for a temporary period as required by 8 C.F.R. § 214.2(1)(3)(vii). For this additional reason, the appeal will be dismissed. In visa proceedings, the burden of proving eligibility for the benefit sought remains entirely with the petitioner. Section 291 of the Act, 8 U.S.C. 1361. Here, that burden has not been met. Accordingly, the director's decision will be withdrawn in part and affirmed in part, and the petition will be denied. ORDER: The appeal is dismissed.

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