u.s. citizenship non-precedent decision of the and immigration 2016-05-31¢  u.s....

Download U.S. Citizenship Non-Precedent Decision of the and Immigration 2016-05-31¢  U.S. Citizenship and Immigration

Post on 18-Jul-2020

0 views

Category:

Documents

0 download

Embed Size (px)

TRANSCRIPT

  • U.S. Citizenship and Immigration Services

    MATTER OF S-USI-, LLC

    APPEAL OF VERMONT SERVICE CENTER DECISION

    Non-Precedent Decision of the Administrative Appeals Office

    DATE: MAY 24,2016

    PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER

    The Petitioner, an investment company, seeks to temporarily employ the Beneficiary as its president under the L-1 A nonimmigrant classification for intracompany transferees. See Immigration and Nationality Act (the Act)§ 10l(a)(l5)(L), 8 U.S.C. § 110l(a)(l5)(L). The L-lA classification allows a corporation or other legal entity (including its affiliate or subsidiary) to transfer a qualifying foreign employee to the United States to work temporarily in an executive or managerial capacity.

    The Director, Vermont Service Center, denied the petition. The Director concluded that the Petitioner would not employ the Beneficiary in a managerial or executive capacity in the United States.

    The matter is now before us on appeal. In support of its appeal, the Petitioner submits additional evidence and asserts that the Director erred in her "incorrect application of the standard and the law."

    Upon de novo review, we will dismiss the appeal.

    I. LEGAL FRAMEWORK

    To establish eligibility for the L-1 nonimmigrant visa classification, a qualifying organization must have employed the Beneficiary in a 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. Section 101 (a)(l5)(L) of the Act. 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. Jd.

    The regulation at 8 C.F.R. § 214.2(1)(3) states that an individual petition filed on Form I-129, Petition for a Nonimmigrant Worker, 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 (1)(1 )(ii)(G) of this section.

  • Matter ofS-USI-, LLC

    (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,

    (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,

    IL U,S, EMPLOYMENT IN A MANAGERIAL OR EXECUTIVE CAPACITY

    The Director denied the petition based on a finding that the Petitioner did not establish that the Beneficiary will be employed in a managerial or executive capacity,

    Section !Ol(a)(44)(A) of the Act, 8 U,S,C, § IIOI(a)(44)(A), defines the term "managerial capacity" as an assignment within an organization in which the employee primarily:

    (i) manages the organization, or a department, subdivision, function, or component of the organization;

    (ii) supervises and controls the work of other supervisory, professional, or managerial employees, or manages an essential function within the organization, or a department or subdivision of the organization;

    (iii) if another employee or other employees are directly supervised, has the authority to hire and fire or recommend those as well as other personnel actions (such as promotion and leave authorization), or if no other employee is directly supervised, functions at a senior level within the organizational hierarchy or with respect to the function managed; and

    (iv) exercises discretion over the day-to-day operations of the activity or function for which the employee has authority, A first-line supervisor is not considered to be acting in a managerial capacity merely by virtue of the supervisor's supervisory duties unless the employees supervised are professionaL

    2

    -- -----------------------

  • Matter of S-US!-, LLC

    Section 10l(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 supervision or direction from higher-level executives, the board of directors, or stockholders of the organization.

    If staffing levels are used as a factor in determining whether an individual is acting in a managerial or executive capacity, U.S. Citizenship and Immigration Services (USCIS) must take into account the reasonable needs of the organization, in light of the overall purpose and stage of development of the organization. See section 10l(a)(44)(C) of the Act.

    A. Evidence of Record

    The Petitioner filed the Form 1-129 on April 10, 2015. On the Form 1-129, the Petitioner indicated that it has no current employees and a net annual income of -$28,703.

    The Petitioner's initial supporting evidence included a supporting statement, titled "Memorandum of Law," in which the Petitioner discussed its prior unsuccessful attempt to acquire and develop a restaurant business, which resulted in the firing of business consultants. The Petitioner also discussed its participation in the formation of a partnership, which resulted in a U.S. subsidiary corporation formed for the purpose of investing in oil well drilling. The Petitioner stated that despite the partnership's dissolution, the Petitioner acquired the partnership's assets and continues to operate "under its own banner[.]"

    With regard to the Beneficiary's proposed U.S. employment, the Petitioner stated that the Beneficiary "will be responsible for overseeing the growth of the investments and current management of the assets and operating interests in oil wells [that are] managed by local U.S. interests[.]" The Petitioner explained that all personnel are employees of the companies that operate oil wells and that the Beneficiary would therefore not assume the role of a personnel manager, but rather that she "will guide and direct the company it its growth and further investment." In a separate statement, the Petitioner provided the following percentage breakdown of the Beneficiary's proposed job duties:

    1. Formulate operational policies, goals, objectives and procedures for the organization -30%

    3

  • Matter of S-US!-, LLC

    • Creating, communicating, and implementing the organization's vision, mission, and overall direction. (2%)

    • Formulating and implementing the strategic plan that guides the direction of the business. (3%)

    • Forming, staffing, guiding, leading, and managing an organization .... (I 0%) • Evaluate and advise on the impact of long[ -]range planning, introduction of new

    programs/strategies and regulatory action. (5%) • Enhance and/or develop, implement and enforce policies and procedures of the

    organization by way of systems that will improve the overall operation and effectiveness of the corporation. (8%)

    • Establish credibility throughout the organization and with the members as an effective developer of solutions to business challenges. (2%)

    2. Formulate and develop strategic plans and business growth and expansion - 40% For the initial startup the President will work to develop and open the restaurant retail store. This will include the [sic] determining the financing, location, staffing, and the initial opening of the business. The [P]resident will be responsible for hiring the General Manager who will be responsible for the daily operation of the business after a successful launch ....

    3. Financial Planning- 15% • Plan, develop, organize, implement, direct and evaluate the organization's fiscal

    function and performance. (5%) • Providing timely and accurate analysis of budgets, financial reports and financial

    trends. (3%) • Provide technical financial advice and knowledge. (2%) • Develop a reliable cash flow projection process and reporting mechanism, which

    includes minimum cash threshold to meet operating needs. (5%)

    4. Personnel management/Corporate Administrative - I 0% • Evaluating the success of the organization. (3%) • Evaluate performance of employees .... (2%) • Conduct annual performance assessments on direct reports[.] (I%) • Make staffing decisions to achieve plans goals and objectives[.] (3%)

    5. Miscellaneous- 5% It is anticipated that some unforeseen business need will arise that will need the [P]resident's attention. This may include attracting new business opportunities, entertaining, contractual obligations, etc.

    4

  • (b)(6)

    Matter of S-US!-, LLC

    The Petitioner also provided an agreement with business partnership with in her proposed position as the BenefiCiary's oversight.

    organizational chart showing its termination of

Recommended

View more >