Intracompany Transferee AAO Decisions 2011 as of June 11, 2012 By Joseph P. Whalen

Apr062011_01D7101.pdf Summarily Dismissed The director denied the petition based on two adverse findings:

1) the petitioner failed to establish that the beneficiary would be employed in the United States in a managerial or executive capacity; and 2) the record lacks evidence to establish that the petitioner was doing business at the time of filing the petition.

No brief or supplemental evidence received after 16 months and the I-290B did not identify any specific alleged error in a finding-of-fact or application of law. Apr252011_01D7101.pdf Appeal Dismissed “The petitioner filed this nonimmigrant petition seeking to transfer the beneficiary as an L-I A nonimmigrant Manager, Sales & Purchase,1 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, a Texas corporation, states that it is engaged in retail trade and investment. It claims to be an affiliate of Ghazi Service Station, located in Karachi, Pakistan. The director denied the petition on September 17, 2008, concluding that the petitioner failed to establish that the beneficiary would be employed in a primarily managerial or executive capacity.

* * * * * “... [T]he claim that the petitioner primarily employs cashiers and restaurant personnel, the AAO finds it reasonable to question whether a company that allegedly owns a truck stop restaurant and several gas stations/convenience stores

1 FN1 in Original: The petitioner and counsel alternate between referring to the proffered position as a Manager, Sales & Purchasing and a Finance Manager. In the Form 1-129, the position is titled Manager, Sales & Purchasing, but in the support letter submitted with the petition, the petitioner refers to the proffered position as a Finance Manager. On appeal, counsel refers to the proffered position as a Sales and Purchasing Manager ("Finance Manager"). As the petitioner indicates in the Fonn 1-129 that the position title is Manager, Sales & Purchasing, the AAO will refer to the proffered position by this name.

would plausibly require a Manager, Sales and Purchasing in addition to a Director of Finance, a Managing Director, and an Operations Manager. Doubt cast on any aspect of the petitioner's proof may, of course, lead to a reevaluation of the reliability and sufficiency of the remaining evidence offered in support of the visa petition. Matter of Ho, 19 I&N Dec. 582, 591 (BIA 1988).” Apr282011_01D7101.pdf Withdrawn & Remanded The primary issue raised by the petitioner on appeal is whether the director erred by adjudicating the instant petition as one filed on behalf of a beneficiary who will be employed in a managerial or executive capacity.

* * * * * Based on the petitioner's statements on Form I-129, the director improperly determined that the petitioner filed an L-1A classification petition. The director then issued a nine-page request for evidence (RFE) on February 26, 2009 in which he failed to acknowledge the petitioner's filing of an L-lB classification petition, and instead requested certain evidence that is only applicable to L-1A managers and executives and new office petitions involving managers and executives. The director denied the petition solely on the grounds that the petitioner failed to meet is burden to establish that the beneficiary has been and would be employed in a primarily managerial or executive capacity. The AAO concurs with counsel's contention that the director clearly erred by failing to adjudicate the petition according to the statutory and regulatory provisions applicable to the requested L-1B classification. The petitioner bears the burden of proof with respect to the specific visa classification that they request on the Form I-129 and cannot be required to meet the burden of proof for an alternative classification. U.S. Citizenship and Immigration Services (USCIS) will only consider the visa classification that the petitioner annotates on the petition, and has no authority to consider other classifications in the alternative.FN2 Here, the director failed to consider the beneficiary's eligibility under the requested L-1B classification, and had no authority to adjudicate the petition under an alternate classification. The director failed to reach any conclusion regarding the beneficiary's eligibility under the requested classification, and instead determined that the beneficiary did not qualify under an alternative classification which is governed by different statutory and regulatory provisions and evidentiary requirements.FN3

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FN2 The Ninth Circuit has determined that once USCIS concludes that an alien is not eligible for the specifically requested classification, the agency is not required to consider, sua sponte, whether the alien is eligible for an alternate classification. Brazil Quality Stones. Inc .. v. Chertoff, Slip Copy, 2008 WL 2743927 (9th Cir. July 10, 2008). FN3 The director's decision, on Page 6, states: "[E]ven if the petitioner would claim that the beneficiary's position is to that of a specialized knowledge. [sic] There's nothing in the record that the beneficiary has specialized knowledge. Customer service, speaking and writing in Danish language does not constitute specialized knowledge by regulation." The AAO cannot find that three sentences within a seven-page decision constitutes a proper adjudication of the petitioner's request for L-l B classification. When denying a petition, a director has an affirmative duty to explain the specific reasons for the denial; this duty includes informing a petitioner why the evidence failed to satisfy its burden of proof pursuant to section 291 of the Act, 8 U.S.C. § 1361. See 8 C.F.R. § 103.3(a)(1)(i). Apr282011_02D7101.pdf Appeal Dismissed “.... The petitioner seeks to employ the beneficiary in the position of president of its new office in the United States for a period of three years.FN1 The director denied the petition, concluding that the petitioner failed to establish that it had secured sufficient physical premises to house the new office, as required by 8 C.F.R. § 214.2(l)(3)(v)(A).”

* * * * * FN1 Pursuant to 8 C.F.R. § 214.2(l)(7)(i)(A)(3), if the beneficiary is coming to the United States to open or be employed in a new office, the petition may be approved for a period not to exceed one year.

* * * * * At the time of filing, the petitioner submitted a "Standard Service Agreement" between the petitioner's foreign affiliate and Broadway Southern California Executive Suites LLC, operating as "Synergy Workplaces." According to the terms of the agreement, the foreign entity licensed the use of office number 263 for a period of three months commencing on March 1, 2009. The company is required to pay a monthly fee of $300.00 for the use of the office, and did not request any additional services such as telephone sets, a fax line, Internet access, parking, or call forwarding. The agreement provides for the use of one office with one occupant. According to the terms stated, the agreement lasts for the period stated

and will automatically renew for successive periods for the same duration as the initial term.

* * * * * The AAO notes that some of the evidence requested by the director, such as photographs of employees working in the office, photographs of company logos and signs displayed on the building, proof of occupancy, and utility bills, could not reasonably be provided prior to the beneficiary's arrival in the United States. However, the director specifically requested that the petitioner submit an original letter from the lessor, as well as a layout showing the square footage of the petitioner's leased space. The petitioner failed to provide any of this evidence in response to the RFE, and did not explain why such evidence would be unavailable. 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 )(14). As noted above, the floor plan submitted does not clearly identify the petitioner's "Office #263." Further, the fact that the petitioner did not request telephones, a fax machine, or Internet access for its office raises questions as to whether the petitioner intends to occupy the office to operate the intended business. Moreover, the petitioner has failed to submit a business plan or any other documentary evidence establishing the company's anticipated space requirements for its import and export business. While the petitioner indicates that it intends to outsource the warehousing function, it also indicates that it intends to commence business operations with a staff of six people and it has leased an office that appears to be suitable for a single occupant. Counsel's assertion that the beneficiary intends to expand operations upon arrival in the United States is insufficient. Without documentary evidence to support the claim, the assertions of counsel will not satisfy the petitioner's burden of proof. The unsupported 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. I (BIA 1983); Matter of Ramirez-Sanchez, 17 I&N Dec. 503, 506 (BIA 1980). .....” Apr282011_03D7101.pdf Appeal Dismissed 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.

* * * * * As a preliminary matter, the AAO notes that the director commented that the United States entity is considered a "new office" for immigration purposes. The

evidence of record indicates that the petitioning company was established as a limited partnership in Texas in 2005, and has been operating a gas station and convenience store known as "Highway Speed Mart" since December of that year. The petitioner indicates that the beneficiary's foreign employer acquired a 50 percent ownership interest in the petitioning company in December 2008. The petitioner filed the Form 1-129, Petition for a Nonimmigrant Worker, on January 28, 2009. Pursuant to 8 C.F .R. § 214.2(l)(1)(ii)(F), "new office" means an organization which has been doing business in the United States through a parent, branch, affiliate or subsidiary for less than one year. The director determined that the petitioning company is considered a "new office" based on the change in ownership structure, notwithstanding the fact that it has been operating in the United States for more than three years at the time of filing. Counsel asserts that the "new office" regulations should not apply when a foreign entity acquires a controlling interest in a fully operational subsidiary in the United States. Upon review, we concur that the petitioning company should not be considered a "new office," and the director's comments in this regard will be withdrawn. Upon review of the director's decision in its entirety, we find the error harmless, as the director does not appear to have applied the new office regulations at 8 C.F.R. § 214.2(1)(3)(v) to the facts of this case.

* * * * * Thus, while several of the duties generally described by the petitioner would generally fall under the definitions of managerial or executive capacity, the lack of specificity raises questions as to the beneficiary's actual proposed responsibilities. Overall, the position description alone is insufficient to establish that the beneficiary's duties would be primarily in a managerial or executive capacity. Beyond the required description of the job duties, USCIS reviews the totality of the record when examining the claimed managerial or executive capacity of a beneficiary, including the petitioner's organizational structure, the duties of the beneficiary's subordinate employees, the presence of other employees to relieve the beneficiary from performing operational duties, the nature of the petitioner's business, and any other factors that will contribute to a complete understanding of a beneficiary's actual duties and role in a business.

* * * * * While the petitioner has submitted a proposed organizational chart depicting four tiers of proposed managerial employees supervising a staff of "cashiers/clerks," a

two-person accounting department, and a purchase clerk, the petitioner has not shown how a single gas station and convenience store would support this staffing structure. The petitioner's stated need for four or more managers and as few as one or two cashiers is not entirely plausible given the nature of the petitioner's business and the petitioner's claim that it will be open for business seven days per week for 12 hours per day. It appears that all current employees work at the petitioner's store, and no office or other location has been documented. While it has assigned many of its claimed employees managerial job titles, it is reasonable to believe that the petitioner actually requires more lower-level employees, such as cashiers and stockers, than it does managers, particularly in light of the most recent state quarterly wage report, which suggests that the majority of the employees work on a part-time basis. May112011_01D7101.pdf Denial Withdrawn, Appeal Sustained “.... The petitioner has employed the beneficiary in L-IA status since April 2006 and seeks to extend his status for two additional years so that he may continue to serve in the position of Business Relationship Manager. The director denied the petition concluding that the petitioner did not establish that the beneficiary would be employed by the U.S. entity in a primarily managerial or executive capacity.”

* * * * * “.... On appeal, the petitioner asserts that the beneficiary supervises, directly and indirectly, a total of 191 professional employees who relieve him from performing nonmanagerial tasks, and is responsible for managing a client account that generates over $12 million annually. The petitioner contends that the proffered position fulfills all requirements for a position in a managerial capacity as set forth in the statute and regulations.”

* * * * * “Upon review, the petitioner's assertions are persuasive. The AAO finds sufficient evidence to establish that the beneficiary will be employed in a primarily managerial capacity. The director's determination appears to be based in part on the director's pre-conceived impression of what duties are typically performed by project managers or business relationship managers for IT workers rather than on the evidence submitted by the petitioner. The director should not hold a petitioner to his undefined and unsupported view of the standard duties of an occupation in making a determination as to whether the beneficiary will be employed in a primarily managerial or executive capacity.

The director should instead focus on applying the statute and regulations to the facts presented by the record of proceeding. Upon review, the AAO finds that the evidence submitted establishes that the beneficiary supervises and controls the work of professional employees and possesses authority to recommend personnel actions for employees under his supervision. See sections 101 (a)(44)(A)(ii) and (iii) of the Act. Furthermore, the AAO concurs with the petitioner's assertion that the beneficiary's overall management of a large group of on-site/off-shore projects for a single client, within the context of the facts presented in this matter, can be equated to managing a subdivision, function or component of the organization. See section 101 (a)( 44)(A)(i) of the Act. The client account for which the beneficiary is responsible generates significant revenue. Further, the beneficiary does not directly oversee such projects, but rather oversees subordinate project managers, who, in turn, supervise the technical resources. Finally, the AAO is satisfied that the beneficiary exercises discretion over the day-to-day operations of projects under his responsibility, as required by section 101(a)(44)(A)(iv) of the Act. While the beneficiary will undoubtedly be required to apply his technical expertise in carrying out his job duties, the AAO is persuaded that the vast majority of the day-to-day non-managerial tasks required to produce the products and provide services for the client are carried out by the beneficiary's subordinate project managers and technical staff. The petitioner need only establish that the beneficiary devotes more than half of his time to managerial duties. In visa petition 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, the petitioner has sustained that burden. Accordingly, the director's decision dated March 9, 2009 is withdrawn.” May112011_04D7101.pdf Rejected as Untimely “The record indicates that the director issued the adverse decision on April 2, 2009. It is noted that the director properly gave notice to the petitioner that it had 33 days to file the appeal. The petitioner filed the appeal with the California Service Center on May 6, 2009, 34 days after the director's decision was issued.”

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“..... The instant appeal consists of the Form I-290B, Notice of Appeal or Motion, on which the petitioner stated: "I will attached eveidence [sic] that support my alegations [sic]. Thanks." The petitioner indicated on the Form I-290B that it would send a brief and/or evidence to the AAO within 30 days. As of this date, no brief or evidence has been submitted.” Jul112011_01D7101.pdf Dismissed as Moot “A review of U.S. Citizenship and immigration Services (USCIS) records indicates that the beneficiary of this petition was also the beneficiary of an approved L-l B classification nonimmigrant petition filed shortly after the denial of this petition, and is currently the beneficiary of an approved L-l A classification petition filed by the instant petitioner in March 2011. While the petitioner has not withdrawn the appeal in this proceeding, it would appear that the beneficiary is presently employed by the petitioner in L-l classification and the issues in this proceeding are moot. Therefore, this appeal is dismissed.” Jul142011_01D7101.pdf Rejected as Untimely “....The beneficiary has been employed as the petitioner's president and chief executive officer since 2005and the petitioner now seeks to extend his L1-A status for three additional years. The director denied the petition based on three independent and alternative grounds, concluding that the petitioner failed to establish:

(1) that the petitioner and the foreign entity have a qualifying relationship; (2) that the beneficiary was employed by a qualifying organization abroad prior to his transfer to the United States; and (3) that the beneficiary would be employed in the United States in a primarily managerial or executive capacity under the extended petition.”

Aug222011_01D7101.pdf Rejected as Untimely & Remanded “The record indicates that the service center director issued the decision on June 5, 2009. It is noted that the service center director properly gave notice to the petitioner that it had 33 days to file the appeal. Neither the Act nor the pertinent regulations grant the AAO authority to extend this time limit. It is further noted

that the director's decision was mailed to counsel and the petitioner at their correct addresses. Although counsel dated the Form I-290B July 13, 2009, it was not received by the service center until August 10, 2009, or 66 days after the decision was issued. Accordingly, the appeal was untimely filed. The regulation at 8 C.F.R. § 103.3(a)(2)(v)(B)(2) states that, if an untimely appeal meets the requirements of a motion to reopen or a motion to reconsider, the appeal must be treated as a motion, and a decision must be made on the merits of the case. The official having jurisdiction over a motion is the official who made the last decision in the proceeding, in this case the Director of the California Service Center. See 8 C.F.R. § 103.5(a)(l)(ii). The matter will therefore be returned to the director. If the director determines that the late appeal meets the requirements of a motion, the motion shall be granted and a new decision will be issued.” [Reading between the lines and I think AAO was telling CSC to do its part and determine if late Appeals meet the requirements of a Motion BEFORE sending it to AAO.]