u.s. citizenship non-precedent decision of the and immigration … - intracompany... · the...

U.S. Citizenship and Immigration Services

MATTER OF CBID-, INC.

APPEAL OF VERMONT SERVICE CENTER DECISION

Non-Precedent Decision of the Administrative Appeals Office

DATE: FEB. 5, 2016

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

The Petitioner, a web platform developer and digital marketing business, seeks to temporarily employ the Beneficiary as the Vice President of Operations of its new office under the L-1 A intracompany transferee classification. See Immigration and Nationality Act (the Act)§ 101(a)(15)(L), 8 U.S.C. § 1101(a)(15)(L). The Director, Vermont Service Center, denied the petition. The matter is now before us on appeal. The appeal will be dismissed.

I. ISSUES

The Director determined that the evidence of record did not establish: (1) that the Petitioner had secured sufficient physical premises in the United States; (2) that the Beneficiary will be employed in a qualifying managerial or executive capacity within one year; and (3) that the Beneficiary has been employed abroad in a qualifying managerial or executive capacity. Beyond the decision of the Director, we will also address whether the Beneficiary has one continuous year of full-time employment abroad with a qualifying organization within the three years preceding the filing of the petition.

II. THE LAW

To establish eligibility for the L-1 nonimmigrant visa classification, the petitioner must meet the criteria outlined in section 1 01(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, 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 (l)(l)(ii)(G) ofthis section.

Matter of CBID-, Inc.

(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.

The regulation at 8 C.F.R. § 214.2(1)(3)(v) further provides that if the petition indicates that the beneficiary is coming to the United States as a manager or executive to open or to be employed in a new office in the United States, the petitioner shall submit evidence that:

(A) Sufficient physical premises to house the new office have been secured;

(B) The beneficiary has been employed for one continuous year in the three year period preceding the filing of the petition in an executive or managerial capacity and that the proposed employment involved executive of managerial authority over the new operation; and

(C) The intended United States operation, within one year of the approval of the petition, will support an executive or managerial position as defined in paragraphs (l)(l)(ii)(B) or (C) of this section, supported by information regarding:

(1) The proposed nature ofthe office describing the scope of the entity, its organizational structure, and its financial goals;

(2) The size of the United States investment and the financial ability of the foreign entity to remunerate the beneficiary and to commence doing business in the United States; and

(3) The organizational structure ofthe foreign entity.

III. PHYSICAL PREMISES TO HOUSE THE NEW OFFICE

The first issue to be addressed is whether the Petitioner established that it has secured sufficient physical premises to house the new office, as required by 8 C.F.R. § 214.2(1)(3)(v)(A).

2

(b)(6)


The Petitioner filed the Form 1-129 on January 7, 2014. On the Fmm 1-129, the Petitioner states that the Beneficiary will be employed at 1 The Petitioner did not submit a copy of a lease agreement or other evidence related to its physical premises at this address.

In a request for evidence (RFE) issued on May 6, 2014, the Director noted the lack of information concerning the worksite and requested that the Petitioner submit evidence to establish that it had secured sufficient physical premises for its business, including evidence such as a lease or contract between the U.S. entity and the property owner.

In response, the Petitioner stated that it had secured new office space at NY through an agreement with The Petitioner submitted a copy of

a membership agreement with executed on June 26, 2014 showing that the Petitioner's lease began on July 1, 2014.

In denying the Petition, the Director acknowledged the new lease agreement, but determined that the Petitioner had not shown that it had secured sufficient physical premises to house the new office as ofthe date of filing in January 2014.

On appeal, the Petitioner questions why the Director "has taken issue of the fact that the Petitioner has secured a new lease for its operations" while the petition was pending. The Petitioner emphasizes the sufficiency of the premises it secured with and asserts that it is "fully adequate for our office need at this moment."

Upon review, the Petitioner did not establish that it had secured sufficient physical premises to house the new office as of the date of filing. Proof of physical premises is required initial evidence for a new office petition. See 8 C.F.R. § 214.2(1)(3)(v)(A). A petitioner must establish that it is eligible for the requested benefit at the time of filing the petition. 8 C.F .R. § 103 .2(b )(1 ).

1 We note that according to publically available information, this appears to be a residential apartment. We acknowledge that the regulations do not specify the type of premises that must be secured by a petitioner seeking to establish a new office. The phrase "sufficient physical premises" is broad and somewhat subjective, leaving USCIS great flexibility in adjudicating this legal requirement. There may be cases in which a residential premises or home office would satisfy the regulatory requirements. However, the petitioner bears the burden of establishing that its physical premises should be considered "sufficient" as required by the regulations at 8 C.F.R. § 214.2(1)(3)(v)(A). To do so, it must clearly identify the nature of its business, the specific amount and type of space required to operate the business, its proposed staffing levels, and evidence that the space can accommodate the petitioner's growth during the first year of operations. USC IS may also consider evidence that the company has obtained a license to operate the business from a residential dwelling, if required, evidence that the landlord has authorized the use of residential space for commercial purposes, evidence that the company has established separate phone lines or made other accommodations for the use of the premises by the U.S. company, or any other evidence that would establish that a residential dwelling or portion of a residential dwelling will meet the company's needs.

3


When a petitioner indicates that a beneficiary is coming to the United States to open a "new office," it must show that it is ready to commence doing business immediately upon approval. At the time of filing the petition to open a "new office," a petitioner must affirmatively demonstrate that it has acquired sufficient physical premises to commence business, that it has the financial ability to commence doing business in the United States, and that it will support the beneficiary in a managerial or executive position within one year of approval. See generally 8 C.P.R. § 214.2(1)(3)(v).

Here the evidence of record is insufficient to establish that the Petitioner secured sufficient physical premises and was therefore able to commence business operations at the time of filing, January 7, 2014. The petitioner must 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 of Michelin Tire Corp., 17 I&N Dec. 248 (Reg. Comm'r 1978).

Contrary to the Petitioner's contentions on appeal, the Director did not deny the petition because the Petitioner secured new premises while the petition was pending. The Director denied the petition because the Petitioner did not submit the evidence requested to show that it had met the eligibility requirements as of the date of filing. Without such evidence, the petition cannot be approved. Accordingly, the appeal will be dismissed.

IV. EMPLOYMENT IN A QUALIFYING MANAGERIAL OR EXECUTIVE CAPACITY

The Director also denied the petition based on a finding that the Petitioner did not establish: (1) that the Beneficiary will be employed in a qualifying managerial or executive capacity within one year of approval; and (2) that the Beneficiary has been employed abroad in a qualifying managerial or executive capacity.

Section 101(a)(44)(A) ofthe Act, 8 U.S.C. § 1101(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

4

(b)(6)


(iv) exercises discretion over the day-to-day operations of the act1v1ty 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 101(a)(44)(B) of the Act, 8 U.S.C. § 1101(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 deci~ion-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 101(a)(44)(C) ofthe Act.

A. Employment in the United States in a Managerial or Executive Capacity within One Year

The first issue to be addressed is whether the Petitioner established that the new office will support the Beneficiary in an executive or managerial position within one year of approval of the petition.

1. Facts

According to the Petitioner, it was established in December 2013 to expand operations in the United States in order to provide "web platforming development and digital marketing services to the American businesses." Its business model is to use the U.S. based operations to secure new business from American based clients for its foreign parent company, and

The Petitioner explained that its parent provides "web platform development, digital marketing services, including building advanced Ecommerce and Social Network platf01ms and high-end B2B/B2C websites, as well as Search Engine Optimization, and Advertising and Conversion rate optimization." According to the materials submitted, the U.S. based Petitioner would only be involved in the sales and account management of the products and services sold, which would be produced and supported by staff of the Vietnam based parent company.

5


The Petitioner stated that the Beneficiary will serve as its Vice President of Operations and submitted a list of general duties. The Petitioner did not submit a business plan or otherwise describe the proposed nature and scope of the new office, its proposed organizational structure, or its financial goals, as required by 8 C.F.R. § 214.2(1)(3)(v)(C)(l).

In the RFE, the Director requested, among other items, evidence to demonstrate how the company will grow to be of sufficient size to support a managerial or executive position and a more detailed description of the Beneficiary's proposed position to demonstrate that it will be in a managerial or executive capacity within one year.

In response to the RFE the Petitioner submitted a letter from its President, asserting that the "VP of Operations is an executive position" responsible for" the following duties:

Making decisions regarding the New York office and accounting firm selection to setup [the Petitioner's] initial business operations in the U.S.- 5% Creating and directing business development strategies to penetrate U.S. market. -15%

o Creating business models and pricing strategy for web development and digital marketing services that meets the demand of target clients

o Identifying and developing and evaluating marketing strategy, based on knowledge of established objectives, market characteristics, and cost and mark-up factors;

o Setup sales process, preparing standard business proposals, contracts and necessary sales materials

o Approaching prospective clients in the U.S., including small and mid-size Internet businesses, Ecommerce businesses, newly-funded Internet startups, and Brands, to sell web development & digital marketing services

Establishing long-range business objectives for U.S. market and specifying strategies and actions to achieve them; - 1 0%

o Initiating market research studies and analyzing their findings to identify potential market demands to create new digital marketing services to serve those new market demands

o Joining strategic business networking organizations and business communities in the U.S. to find new clients, build partnership with digital agencies and vendors, and seeking quality prospective hires

Setup business processes, procedures rules and regulations for the company - 20% o Setup company policies on working hour rules, communication rules, work

ethic rules, dress code, and other important policies. o Setup salary range, rewarding policies and promotion policies for employees

- Planning the staffing need and making recruitment decisions: - 5% o Hiring new employees for [the Petitioner's] New York Office, including

account managers and salespersons, to expand the business operations as needed.


o Hiring future managerial positions for the company as needed - Leading the operations of account management team and sales team- 15%

o Receiving direct reports from account managers and salespersons and managing daily operations of the teams

o Making operational decisions, providing necessary training and guidance for account managers and salespersons to fulfill their jobs

o Giving annual employee performance evaluation and making firing decisions

Supervising and managing digital campaigns for major clients- 15% - Working with accountant/accounting firm to manage cash flow, tax reports, and

other necessary accounting and finance responsibilities- 5% - Reporting to the CEO about the business performance, team operations, accounting

& finance, personnel status, and other business matters. Receiving business decisions directly from CEO and execute them. - 10%

The Petitioner also provided a letter from its President, dated July 11, 2014, describing its business plan. The Petitioner states that it "aims at $500,000 in revenue in the 1st operation year. The goal is to bring in 20 - 50 clients in the 1st operation years, and each client project value is around at $10,000 - $25,000." The business plan also included yearly cost estimates and an organizational chart showing the Beneficiary as Vice President of Operations, reporting to the CEO and directly supervising one to two salespeople, three to five account managers, and outsourced accounting services. According to the business plan, the account managers will coordinate projects between the clients and the technical team in Vietnam, ensuring that timelines and requirements are met; while the salespeople will assist the Beneficiary with sales and client acquisition as revenue grows.

Regarding the initial investment needed, the Petitioner stated that it "can fund itself and does not require capital investment from [its parent company]." The Petitioner explained that, because it operates a digital services business, it "has very little capital need," and stated that it "has initial clients and generates revenue early to pay for office rent and salary for initial employee at $2,000/month, and will hire more employees when the revenue grows."

The Director denied the petition, stating that the evidence of record did not establish that the Beneficiary would be employed in a managerial or executive capacity within one year of approval.

On appeal, the Petitioner states that the information provided in the previously submitted business plan is sufficient to establish that the U.S. operations would support a managerial or executive position within one year.

2. Analysis

Upon review of the petition and the evidence, and for the reasons discussed herein, the Petitioner has not established that the Beneficiary will be employed in a managerial or executive capacity within one year of the petition's approval.


When a new business is first established and commences operations, the regulations recognize that a designated manager or executive responsible for setting up operations will be engaged in a variety of low-level activities not normally performed by employees at the executive or managerial level and that often the full range of managerial responsibility cannot be performed in that first year. The "new office" regulations allow a newly established petitioner one year to develop to a point that it can support the employment of a beneficiary in a primarily managerial or executive position.

Accordingly, if a petitioner indicates that a beneficiary is coming to the United States to open a "new office," it must show that it is prepared to commence doing business immediately upon approval so that it will support a manager or executive within the one-year timeframe. This evidence should demonstrate a realistic expectation that the enterprise will succeed and rapidly expand as it moves away from the developmental stage to full operations, where there would be an actual need for a manager or executive who will primarily perform qualifying duties. See generally 8 C.P.R. § 214.2(1)(3)(v). The petitioner must describe the nature of its business, its proposed organizational structure and financial goals, and submit evidence to show that it has the financial ability to remunerate the beneficiary and commence doing business in the United States. Id.

In the instant matter, the Petitioner consistently asserts that the Beneficiary will be employed in an executive position as Vice President of Operations. The Petitioner does not claim that that the Beneficiary will be employed as a function or personnel manager; therefore, we restrict our analysis to whether or not the Petitioner has established that the Beneficiary will employed in a qualifying executive capacity within one year of approval.

The statutory definition of the term "executive capacity" focuses on a person's elevated position within a complex organizational hierarchy, including major components or functions of the organization, and that person's authority to direct the organization. Section 101 (a)( 44 )(B) of the Act, 8 U.S.C. § 1101(a)(44)(B). Under the statute, a beneficiary must have the ability to "direct[] the management" and "establish[] the goals and policies" of that organization. Inherent to the definition, the organization must have a subordinate level of managerial employees for the beneficiary to direct and the beneficiary must primarily focus on the broad goals and policies of the organization rather than the day-to-day operations of the enterprise. An individual will not be deemed an executive under the statute simply because they have an executive title or because they "direct" the enterprise as the owner or sole managerial employee. The beneficiary must also exercise "wide latitude in discretionary decision making" and receive only "general supervision or direction from higher level executives, the board of directors, or stockholders of the organization." I d.

When examining the executive or managerial capacity of the beneficiary, we 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. Beyond the required description of the job duties, U.S. Citizenship and Immigration Services (USCIS) reviews the totality of the record when examining the claimed managerial or executive capacity of a beneficiary,


including the petitioner's proposed organizational structure, the duties of the beneficiary's proposed subordinate employees, the petitioner's timeline for hiring additional staff, the presence of other employees to relieve the beneficiary from performing operational duties at the end of the first year of operations, 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. The petitioner's evidence should demonstrate a realistic expectation that the enterprise will succeed and rapidly expand as it moves away from the developmental stage to full operations, where there would be an actual need for a manager or executive who will primarily perform qualifying duties. See generally 8 C.F.R. § 214.2(1)(3)(v).

Here, the Petitioner has not established that the Beneficiary will be employed in the U.S. in a primarily executive capacity. The record contains insufficient evidence to demonstrate that the Beneficiary will primarily focus on the broad goals and policies of the organization, given that the Petitioner currently has no employees and the proposed plan for hiring subordinate employees, which is wholly based on revenue growth, does not offer a concrete timeline for expanding the staff.

Moreover, even if the Petitioner's business were to grow and allow for hiring to occur at planned levels, the evidence in the record demonstrates that the Beneficiary would continue to perform the non-qualifying duties of "[h]elping to identify opportunities and areas where our services can be utilized," "managing digital campaigns for major clients," "[setting] up sales process, preparing standard business proposals, contracts and necessary sales materials," along with other marketing and sales related duties listed above, well beyond the one year time frame. The Petitioner has not demonstrated that any of the planned subordinate staff would take over these non-qualifying duties, which according to the petitioner, make up over 55% of the Beneficiaries responsibilities. Furthermore, even if some of the duties were transitioned to subordinate staff, the absence of a level of management personnel between the Beneficiary and such staff precludes us from making a determination that the Beneficiary would primarily be engaged in an executive capacity, focusing on the "broad goals of the organization rather than the day-to-day operations of the enterprise."

Furthermore, our analysis of the Beneficiary's employment capacity and the Petitioner's ability to employ him in a qualifying capacity by the end of the first year of operations is restricted because the record does not include sufficient probative information on the nature of the entity and its financial goals. Specifically, the business plan submitted by the Petitioner does not address the cost of producing the goods and services sold. The Petitioner states that the products and services sold by the U.S. office will actually be performed and supported by technical staff employed by the parent company in Vietnam. However, the cost projections do not account for payment to the Vietnamese company for the cost of outsourcing the production and support of the products and services, and the Petitioner has not otherwise explained its business model in sufficient detail to account for how the client accounts and projects will be structured financially. Therefore, the Petitioner's assertion that it can cover its costs solely through revenue from new projects generated in the United States, without support from the parent company, is not persuasive.

9

(b)(6)


The evidence in the record does not establish that the company will be able to support a qualifying managerial or executive position within a twelve-month period. The regulations require the Petitioner to present a credible picture of where the company will stand in one year, and to provide sufficient evidence in support of its claim that the company will grow to a point where it can support a managerial or executive position within that time. Going on record without supporting documentary evidence is not sufficient for purposes of meeting the burden of proof in these proceedings. !d.

Based on these deficiencies, we find that the Petitioner has not established that it will be able to support the Beneficiary in a primarily managerial or executive capacity by the end of the first year of operations. Accordingly, the appeal will be dismissed.

B. Employment in a Qualifying Managerial or Executive Capacity Abroad

The next issue to be addressed is whether the Petitioner established that the Beneficiary was employed by the foreign entity in a qualifying managerial or executive capacity for one year in the three years preceding the filing of the petition. See 8 C.F.R. § 214.2(1)(3)(v)(B).

1. Facts

The Petitioner states that the Beneficiary has been employed in Vietnam by in the position of Marketing & Sales Director since June 2009. On the Form I -129, the Petitioner writes that in the position abroad, the Beneficiary has " [d]evised, formulated and implemented Web Marketing strategy and strategy through the Internet E-Commerce and Search Engine Optimizations[,]" and that his "[p ]rimary responsibilities included overseeing direct and indirect sales and related activities and handling the marketing duties and needs of the company." The Petitioner also submitted a support letter with additional position information.

The Director reviewed the information provided and issued an RFE requesting additional information about the Beneficiary's position abroad. In response, the Petitioner submitted a revised job description including a percentage breakdown of time spent on each duty, and an organizational chart showing the Beneficiary within the organizational hierarchy. The job description provided in the RFE response states that the Beneficiary is responsible for:

- Creating and executing the marketing strate~ies and competitive strategies for the company (30% of total time), including:

o Identifying target markets, prospective clients and their demand o Identifying the right digital marketing services and web design &

development services that match with the market demands o Defining the value propositions and pricing strategy, for each product and

service of the company o Identifying the major competitors and set competitive strategies to outpace

them in the market

10


- Creating and execute sales strategies to bring in clients and revenue (25% of total time)

o Creating the effective sales process, sales documents, standard proposals and contracts

o Provide training and support for salespersons to do their jobs o Approaching major prospective clients in the digital industry, building

relationships and form partnerships to acquire those clients - Creating staffing plan and make hiring & firing decisions (15% of total time)

o Setting the recruitment requirement, salary ranges, promotion and working rules for sales & marketing team

o Making hiring decisions for salespersons and marketers for the company o Giving performance reviews and make firing decisions for marketing and

sales team Managing important projects with major clients (20% of total time)

o Communicating directly with clients to figure out their goals and needs and help satisfy them

o Strengthen the client relationship to ensure long-term business o Working with technical team and digital marketing team to provide quality

services to key clients - Report directly to the CEO about the marketing and sales performance, and receive

and execute business decisions from the CEO (1 0% of total time)

The organizational chart shows the Beneficiary supervising four employees: a sales manager, salesperson, sales assistant, and marketer; and reporting directly to the CE0.2

The Director denied the petition, stating that the evidence of record did not establish that the Beneficiary has been employed abroad in a managerial or executive capacity. On appeal, the Petitioner reiterates that its previously provided evidence was sufficient and contends that the foreign position met the regulatory requirements.

2. Analysis

Upon review, we find that the Petitioner has not established that the Beneficiary has been employed abroad in a qualifying managerial or executive position with the foreign employer.

When examining the executive or managerial capacity of the beneficiary, we will look first to the petitioner's description of the job duties. See 8 C.F.R. § 214.2(1)(3)(ii). The definitions of executive and managerial capacity 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

2 We note that based on the organizational chart, it appears that the Beneficiary may also have had some level of oversight over the digital marketing and technology teams. However, the Petitioner has not asserted such responsibility and has not refuted the Director's conclusion that the Beneficiary supervises only the sales and marketing personnel.

I I


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 Petitioner does not assert that the Beneficiary has been performing in an executive capacity; therefore, we restrict our analysis to whether or not the Beneficiary has been performing in a managerial capacity. Upon review, and for the reasons discussed herein, the Petitioner has not established that the Beneficiary has been employed in a qualifying managerial capacity.

Here, the Petitioner contends that the Beneficiary qualifies as a manager given his position abroad as Marketing and Sales Director. However, the duties assigned to this position do not indicate that the position falls within the statutory definition of managerial capacity. Specifically, the job description provided on the Form I-129 states that the Beneficiary is responsible for "handling the marketing duties and needs of the company," while the duties stated in the support letter include: "[f]ormulating, directing and coordinating marketing activities and policies to promote our web platform development and digital marketing services"; [ c ]onducting studies to identify potential markets for web platform development and digital marketing services"; and "[i]nitiating market research studies and analyzing their findings as well as preparing and implementing marketing plans." When asked for additional information, the Petitioner emphasized that the Beneficiary spends 30% of his time "executing the marketing strategies and competitive strategies for the company . . . including: [i]dentifying target markets, prospective clients and their demand" and "identifying the right digital marketing services and web design & development services that match with the market demands." The Petitioner further states that the Beneficiary spends 25% of his time "[c]reating and execut[ing] sales strategies to bring in clients and revenue," focusing on locating and approaching prospective clients, and spends 20% of his time managing projects for major clients, "including communicating directly with clients to figure out their goals and needs to help satisfy them."

Based on this description, it is reasonable to conclude that the Beneficiary spends a significant amount of his time performing non-qualifying market research and sales activities. Although the Petitioner claims that the foreign entity has sales and marketing staff, the statements made in the record reflect that the Beneficiary performs these duties himself, rather than assigning them to the company's employees. The actual duties themselves reveal the true nature of the employment. Fe din Bros. Co., Ltd. v. Sava, 724 F. Supp. 1103, 1108 (E.D.N.Y. 1989), affd, 905 F.2d 41 (2d. Cir. 1990). While performing non-qualifying tasks necessary to produce a product or service will not automatically disqualify a beneficiary as long as those tasks are not the majority of the beneficiary's duties, the petitioner still has the burden of establishing that the beneficiary is "primarily" performing managerial or executive duties. Section 1 01 (a)( 44) of the Act.

The Petitioner also indicated that the Beneficiary's responsibilities abroad have included "[ e ]stablishing long-range objectives and specifying the strategies and actions to achieve them;" and "[d]eveloping pricing strategies, balancing firm objectives and customer satisfactions." While such tasks may generally fall within the statutory definition of managerial capacity, the Petitioner did not indicate that these are his primary duties nor did it explain how non-qualifying duties associated with

12


implementing these goals are performed by the Petitioner's other employees. In the instant matter, the description of the Beneficiary's position abroad is insufficient to show that the Beneficiary has been primarily performing qualifying duties for the foreign employer.

Additionally, the Petitioner has not established that the Beneficiary has been employed as a personnel manager. The statutory definition of "managerial capacity" allows for both "personnel managers" and "function managers." See sections 10l(a)(44)(A)(i) and (ii) of the Act, 8 U.S.C. §§ 1101(a)(44)(A)(i) and (ii). Personnel managers are required to primarily supervise and control the work of other supervisory, professional, or managerial employees. Contrary to the common understanding of the word "manager," the statute plainly states that 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."3 Section 101(a)(44)(A)(iv) of the Act; 8 C.P.R. § 214.2(l)(l)(ii)(B)(2). If a beneficiary directly supervises other employees, the beneficiary must also have the authority to hire and fire those employees, or recommend those actions, and take other personnel actions. 8 C.F.R. § 214.2(l)(l)(ii)(B)(3).

In this case, the Petitioner asserts that the Beneficiary spends 15% of his time "[ c ]reating staffing plan and make hiring & firing decisions," "[s]etting the recruitment requirement, salary ranges, promotion and working rules for sales & marketing team," "[m]aking hiring decisions for salespersons and marketers for the company," and "[g]iving performance reviews and make firing decisions for marketing and sales team." As noted above, the organizational chart shows the Beneficiary supervising four individuals. However, the Petitioner has not asserted or provided evidence that the Beneficiary's duties are actually managerial in nature and not those of a first-line supervisor. Nor has the Petitioner asserted or provided evidence, such as descriptions of the duties and requirements of each position, to indicate that the positions supervised by the Beneficiary are professional positions, and that the Beneficiary's position would therefore qualify under the first-line supervisory exception. Further, without position descriptions for the Beneficiary's subordinates, we cannot conclude that he supervises subordinate managers or supervisors. Therefore, the evidence in the record is insufficient to establish that the Beneficiary has been primarily performing the duties of a personnel manager in the position abroad.

The Petitioner has also not established, in the alternative, that the Beneficiary was employed primarily as a "function manager." The term "function manager" applies generally when a beneficiary does not supervise or control the work of a subordinate staff but instead is primarily responsible for managing an "essential function" within the organization. See section 101(a)(44)(A)(ii) of the Act, 8 U.S.C. § 1101(a)(44)(A)(ii). The term "essential function" is not defined by statute or regulation. If a petitioner claims that the beneficiary is managing an essential function, the petitioner must furnish a detailed description of the beneficiary's duties that explains

3 In evaluating whether the Beneficiary has managed professional employees, we must evaluate whether the subordinate positions require a baccalaureate degree as a minimum for entry into the field of endeavor. Section 1 01 ( 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 seminaries."

13

(b)(6)


how he manages the function, identifies the function with specificity, articulates the essential nature of the function, and establishes the proportion of the beneficiary's daily duties attributed to managing the essential function. See 8 C.F.R. § 214.2(1)(3)(ii). In addition, the petitioner's description of the beneficiary's daily duties must demonstrate that the beneficiary manages the function rather than performs the duties related to the function. An employee who "primarily" performs the tasks necessary to produce a product or to provide services is not considered to be "primarily" employed in a managerial or executive capacity. See sections 101(a)(44)(A) and (B) of the Act (requiring that one "primarily" perform the enumerated managerial or executive duties); Matter of Church Scientology International, 19 I&N Dec. 593, 604 (Comm'r 1988).

In this case, the Petitioner has not provided evidence that the Beneficiary primarily manages an essential function. The Petitioner appears to assert that the Beneficiary's involvement in marketing and sales activities is tantamount to managing an essential function, but does not establish the Beneficiary is managing this function, rather than performing the duties associated with the marketing and sales functions himself. Rather, as noted above, the record does not indicate that the foreign entity' s other sales and marketing staff relieve the Beneficiary from performing the nonqualifying duties. For these reasons, the Petitioner has not established that the Beneficiary was employed as a function manager.

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 understanding of a beneficiary ' s actual proposed duties and role in a business. Here, the totality of the evidence does not support the Petitioner' s claims that the Beneficiary has been employed abroad in a qualifying managerial capacity. For this additional reason, the appeal will be dismissed.

V. ONE YEAR OF CONTINUOUS FULL-TIME EMPLOYMENT ABROAD

Beyond the decision of the Director, the record does not establish that the Beneficiary has the required one year of continuous full-time employment with the foreign entity. In order to qualify for the classification requested, the Petitioner must establish that the Beneficiary 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. See 8 C.F.R. § 214.2(1)(3)(iii). In this case, the Petitioner states that the Beneficiary has been employed abroad by its foreign parent, since June 2009 in the position of Marketing & Sales Director.

After reviewing the record of proceedings, as well as USCIS and U.S . Department of State records, we sent the Petitioner a notice of intent to dismiss (NOID) the appeal notifying the Petitioner that contrary to the facts asserted in the petition, U.S . Department of State records indicate that when the Beneficiary first applied for a Bl /B2 visa in September 2009, he stated on his visa application that he was employed by

14

(b)(6)


Records further show that when he applied for a Bl/B2 visa again in January 2011 and April 2012, the Beneficiary reported that he was employed as the Vice President of Technology and Foreign Affairs with

In response to the NOID, the Petitioner submitted a letter stating that the Beneficiary was employed by (also known as from December 8, 2008 until December 31 , 2013; and that the Beneficiary was also employed as a Director of since its formation on June 19, 2009. The Petitioner also submitted documentary evidence to demonstrate the Beneficiary's simultaneous involvement with both We are persuaded that the Petitioner's representation of the Beneficiary's dual employment is true; however, the Petitioner has not provided information on the proportion of time the Beneficiary spent working for each of two companies during the time he was simultaneously employed.

The Petitioner submitted a "Labor Contract" the Beneficiary entered into with on January 1, 2011 which indicates that he was hired as a full-time employee working 40 hours per week during normal business hours (weekdays from 8:00 a.m. until 5:00 p.m.). The record also shows that sent the Beneficiary to the United States to support its U.S. clients from April to June 2012. This evidence, considered with fact that the Beneficiary consistently identified this company as his employer on his nonimmigrant visa applications, raises questions regarding how much time he actually spent performing duties for the Petitioner's parent company, notwithstanding his ownership interest in that company.

Based on the evidence submitted, we cannot determine whether the Beneficiary has worked for as a full-time employee for one continuous year in the three years preceding this petition. For

this additional reason, the petition cannot be approved.

We may deny an application or petition that fails to comply with the technical requirements of the law even if the Service Center does not identify all of the grounds for denial in the initial decision. See Spencer Enterprises, Inc. v. United States, 229 F.Supp. 2d 1025, 1037 (E.D. Cal. 2001), affd. 345 F.3d 683 (9th Cir. 2003); see also Soltane v. DOJ, 381 F.3d 143, 145 (3d Cir. 2004)(noting that the AAO reviews appeals on a de novo basis).

VI. CONCLUSION

The petition will be denied and the appeal dismissed for the above stated reasons, with each considered as an independent and alternative basis for the decision. In visa petition proceedings, the burden of proving eligibility for the benefit sought remains entirely with the petitioner. Section 291 ofthe Act, 8 U.S.C. § 1361; Matter ofOtiende, 26 I&N 127, 128 (BIA 2013). Here, that burden has not been met.

15


ORDER: The appeal is dismissed.

Cite as Matter ofCBID-, Inc., ID# 14414 (AAO Feb. 5, 2016)

16

u.s. citizenship non-precedent decision of the and immigration … - intracompany... · the...

Documents