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  • U.S. Deparunent or Homekind cunts(Ls. Uwensl p anu Inmpmicm setm(

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    U.S. Citizenshipand ImmigrationServices

    DATE: DEC 2 8 2012 Office: V ERMONT SERVICE CENTER FILE:

    IN RE: Petitioner:Beneficiary:

    PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(I5)(L) of the Immieration

    and Nationality Act. 8 U.S.C. l 10l(a)(15)(L)

    ON BEHALF OF PETITIONER:

    INSTRUCTIONS:

    Enclosed please find the decision of the Administrative Appeals Office in your case. All of the documents

    related to this matter have been returned to the office that originally decided your case. Please be advised thatany further inquiry that you might have concerning your case must be made to that office.

    If you believe the AAO inappropriately applied the law in reaching its decision, or you have additional

    information that you wish to have considered, you may file a motion to reconsider or a motion to reopen in

    accordance with the instructions on Form I-290B, Notice of Appeal or Motion, with a fee of S630. Thespecific requirements for filing such a motion can be found at 8 C.F.R. 103.5. Do not file any motiondirectly with the AAO. Please be aware that 8 C.F.R. 103.5(a)(1)(i) requires any motion to be filed uiihin

    30 days of the decision that the motion seeks to reconsider or reopen.

    Thank you,

    on .senbergActing Chief. Administrative Appeals Office

    www.usw.gm

  • Page 2

    DISCUSSION: The Director. Vermont Service Center, denied the nonimmigrant visa petition. The matter isnow before the Administrative Appeals Office (AAO) on appeal The appeal will be dismissed.

    The petitioner filed this nonimmigrant petition seeking to classify the beneficiary as an L-IA nonimmigrantintracompany transferee pursuant to section 101(a)(15)(L) of the Immigration and Nationality Act (the Act), 8U.S.C. 1101(a)(15)(L). The petitioner, a Texas corporation, states that it engages in the marketing and

    wholesale distribution of convenience store items and related products. The petitioner claims to be asubsidiary of AMN Builders, focated in Karachi, Pakistan. The petitioner seeks to employ the beneficiary asits president/CEO for a period of two years.

    The director denied the petition concluding that the petitioner failed to establish that it will employ the

    beneficiary in a primarily managerial or executive capacity.

    The petitioner subsequently filed an appeal The director declined to treat the appeal as a motion and

    forwarded the appeal to the AAO for review. On appeal, counsel for the petitioner asserts that the beneficiary

    acts as an executive and will not perform routine operational duties at the U.S. company. Counsel submits abrief and additional evidence on appeal

    L THE LAW

    To establish eligibility for the L-l non mmigrant visa classification, the petitioner must meet the criteriaoutlined in section 101(a)(15)(L) of the Act. Specifically, a qualifying organization must have employed thebeneficiary in a qualifying managerial or executive capacity, or in a specialized knowledge capacity, for onecontinuous 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 renderine hisor her services to the same employer or a subsidiary or affiliate thereof in a managerial, executive. orspecialized knowledge capacity.

    The regulation at 8 C.F.R. 214.2(l)(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)(I )(ii)(G) of this section.

    (ii) Evidence that the alien will be employed m an executive, managerial, or specializedknowledge capacity, including a detailed description of the services to be performed.

    (iii) Evidence that the alien has at least one continuous year of full-time employment

    abroad with a qualifying organization within the three years preceding the filing ofthe petition.

    (iv) Evidence that the alien's prior year of employment abroad was in a position that wasmanagerial, executive or involved specialized knowledge and that the alien's prioreducation, training. and employment qualifies him/her to perform the intended

  • Page 3

    services in the United States; however, the work in the United States need not he the

    same work which the alien performed abroad.

    Section 10l(a)(44)(A) of the Act, 8 U.S.C. 110l(a)(44)(A), defines the term "managerial capacity" as an

    assignment within an organ zation in which the employee primarily:

    (i) manages the oreanization. or a department, subdivision, function. or component of

    the areanization;

    tii) supervises and controls the work of other supervisory, professional, or managerial

    employees, or manages an essential function within the organization, or a departmentor subdivision of the organization;

    (iii) if another employee or other employees are directly supervised, has the amhority to

    hire and fire or recommend those as well as other personnel actions (such as

    promotion and leave authorization), or if no other employee is directly supervised.

    functions at a senior level within the organizational hierarchy or with respect to the

    function managed; and

    (iv) exercises discretion over the day to-day operations of the activity or function for

    which the employee has authority. A first-line supervisor is not considered to be

    acting in a managerial capacity merely by virtue of the supervisor's supervisory

    duties unless the employees supervised are professional.

    Section 10l(a)(44)(B) of the Act 8 U.S.C. 110)(a)(44)(B), defines the term "executive capacity" as an

    assienment within an oreanization in which the employee primarily:

    (i) directs the management of the organization or a major component or function of theoreamzation;

    (ii) establishes the goals and policies of the organization, component or function:

    (iii) exercises wide latitude in discretionary decision-making; and

    (iv) receives only eeneral supervision or direction from higher-level executives. ihe board

    of directors, or stockholders of the organization.

    II. THE ISSUE ON APPEAL

    The sole issue addressed by the director is whether the petitioner established that the beneficiary w iD he

    employed in United States in a primarily managerial or executive capacity.

    The petitioner filed the Form 1-129, Petition for a Nonimmigrant Worker, on August 23, 2011. The petitioner

    stated on the Form I-129 that the beneficiary would be employed as president/CEO of the U.S. company and

  • Page 4

    indicated that the company had five employees as of the date of filing. In a letter dated August 17, 2011, thepetitioner described the beneficiary's position as follows:

    As President and CEO of Ithe petitionerl, [the beneficiaryl will be the key U.S. contact forthe shareholders and directors of the parent company. [The beneficiary) will be employed at

    the highest position within the U.S. Company, and will oversee managers who supervise

    employees who run day-to-day operations, including having the overall responsibility ofplanning and developing the U.S. investment, executing or recommending personnel actions,placing a management team to run the operations, supervising all financial aspects of thecompany and developing policies and objectives for the company.

    Al |the petitioner|, |the beneficiaryl will hold the position of President and CEO. lThe

    beneficiary] will have overall executive responsibility for developing, organizing, andestablishing the purchase, sale, and marketing of merchandise for sale in the U.S, market.His other duties will include: (i) identifying, recruiting, and building a management team andstaff with background and experience in the U.S. retail market; (ii) negotiating and

    supervising the drafting of purchase agreements; (iii) marketing products to consumersaccording to |the foreign entity'sl guidelines; (iv) overseeing the legal and financial duediligence process and resolving any related issues; (v) developing trade and consumer marketstrategies based on guidelines formulated by [the foreign entity}; (vi) developing andimplementing plans to ensure |the petitioner's] profitable operation; and (vii) negotiatingprices and sale terms, developing pricing policies and advertising techniques.

    Descrip_tion_of Duties Time_Sp_ent 4Management Decisions SW

    Company Representation 15

    Financial Decisions 10Supervision of day-to-day company functions |()4

    Business Negotiations 15%

    Organizationaf Development of Company 107

    * *

    [The beneficiary| will serve as President and CEO of our U.S. subsidiary, |the petitionerl, andwill continue to establish our U S, operations. He is responsible for all our planning,expansion, banking, budgeting, and marketing. In addition, he hires and trains other

    managers and employees and is in charge of increasing the sales of the company. He is

    employed at the highest executive level and has complete authority to establish goals andpolicies and exercises discretionary decision-making authority based upon policies andprocedures developed by shareholders. [The beneficiary] assumes sole responsibility of alldiscretionary actions taken by the U.S. entity to ensure its profitable operation.

    [The beneficiary's| employment as CEO/President will afford him complete authority to

    establish goals and policies and exercises Isicl discretionary decision-making authority basedupon policies and procedures developed

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