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

U.S. Citizenship and Immigration Services

MATTER OF L-Q-USA INC.

APPEAL OF VERMONT SERVICE CENTER DECISION

Non-Precedent Decision of the Administrative Appeals Office

DATE: DEC. 29, 2016

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

The Petitioner, a grocery store, seeks to temporarily employ the Beneficiary as president and store manager of its new oflice under the L-1 A nonimmigrant classification for intracompany transferees. See Immigration and Nationality Act (the Act) section 10l(a)(15)(L), 8 U.S.C. § 1101(a)(15)(L). The L-1 A 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 a managerial or executive capacity.

The Director, Vermont Service Center, denied the petition. The Director based the denial on two grounds: (1) the Petitioner would not employ the Beneficiary in the United States in a managerial or executive capacity within one year of approval of the petition; and (2) the Beneficiary was not employed abroad in a managerial or executive capacity.

The matter is now before us on appeal. In its appeal, the Petitioner disputes the grounds cited as the bases for the Director's decision.

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. !d.

The regulation at 8 C.F.R. § 214.2(1)(3) states that an individual petition filed on Form 1-129, Petition for a Nonimmigrant Worker, shall be accompanied by:

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Matter of L-Q- USA Inc.

(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.

(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 ofthe 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 qualities 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.

In addition, the regulation at 8 C.F.R. § 214.2(1)(3)(v) states 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, the petitioner shall submit evidence that:

(A) Sufficient physical premises to house the new ot1ice 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 or 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 (1)(1 )(ii)(B) or (C) of this section, supported by information regarding:

(I) The proposed nature of the 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 ofthe foreign entity to remunerate the beneficiary and to commence doing business in the United States; and

(3) The organizational structure of the foreign entity.

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Matter of L-Q-USA Inc.

II. EMPLOYMENT IN AN EXECUTIVE CAPACITY

The Director's denied the petition because the Petitioner did not establish that the Beneficiary has been or will be employed in an executive capacity. The Petitioner does not claim that the Beneficiary has been or. will be employed in a managerial capacity. Therefore, we restrict our analysis to whether the Beneficiary has been and will be employed in an executive capacity.

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 fun<;tion 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) ofthe Act.

A. U.S. Employment in an Executive Capacity

The first issue to be addressed in this decision is whether the Petitioner submitted sufficient evidence to establish that it would support the Beneficiary in an executive capacity within one year of the approval of the petition.

The Petitioner filed the Form 1-129 on October 13, 2015. In support of the petition, the Petitioner provided a cover letter stating that the Beneficiary "will plan, organize, direct and manage the U.S. retail store's major functions, and will hire other employees and manage them to archive [sic] the organization's goals and to run the day-to-day activities. The Petitioner further stated that the Beneficiary will "establish protocols and policies" and will carry out a "broad range of duties" and have discretionary authority to make decisions on behalf of the entity.

In addition, the Petitioner provided the following list of duties and their respective time allocations:

• Direct and coordinate the operations of the grocery store; (20%) • Manage subordinate staff, assign duties, make their work schedule and ensure that

they adhere to store procedures; ( 1 0%)

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• Establish business plans and goals, and develop administrative strategies to improve customer service, drive store sales and increase profitability; (20%)

• Review financial documents or sales reports to ensure achievement of business goals; (15%)

• Make effective and objective decisions regarding operational choices in work procedures, inventory application, ordering and scheduling; (15%)

• Forecast staffing needs and develop recruiting strategies to provide optimal staffing in all areas; (1 0%)

• Exercise discretionary authority over hiring and firing store employees[;] (1 0%)

The Petitioner stated that it contracted a construction company to perform $57,975 in updates and repairs to the business premises and further claimed to have spent an additional $20,000 on the purchase of inventory. The Petitioner stated that it seeks to meet the demands of the growing South Asian population in The Petitioner also submitted a Business Plan in which it stated its plan to hire two adpitional employees - an assistant store manager and a shift cashier - and projected approximately $300,000 in gross sales by the end of its first year of operations. The Business Plan also included the Petitioner's projected monthly expenses and a five-year plan of its projected gross sales.

The Director issued a request for evidence (RFE) informing the Petitioner that the Business Plan it submitted was overly general and did not provide documentation to support the time tables and business bench marks it claimed during its first year of operation. The Director also questioned how the Petitioner would support the Beneficiary in an executive position with a stafi of only two supporting employees. The Director instructed the Petitioner to submit, in part, a feasibility or market research study demonstrating a need for the U.S. company and the likelihood that it would employ the Beneficiary in an executive capacity at the end of its first year of operation; a more detailed Business Plan with a timetable for each proposed action during the Petitioner's first year of operation; and a copy of the Petitioner's proposed organizational chart illustrating its staffing levels and organizational hierarchy. In addition, the Director asked the Petitioner to provide evidence regarding the size of the U.S. investment and the foreign entity's ability to remunerate the Beneficiary and commence doing business in the United States.

In its response statement, the Petitioner stated that in his position as store manager of the U.S. grocery store the Beneficiary would "perform substantially similar job duties primarily in the executive capacity" as he performed during his employment abroad and claimed that it plans to hire three employees - a cashier, a grocery clerk, and a halal meat cutter and vegetable and fruit sales employee - by the end of its first quarter during its first year of operation. The Petitioner claimed that its foreign affiliate has invested over $110,000 to establish the U.S. entity, including securing physical premises to house the operation. In support of this claim, the Petitioner submitted a number of bank wire transfer receipts issued to the Beneficiary over the course of a seven-month period that preceded the filing of the petition and in January 2016. We note that the Beneficiary was named as both the remitting ,and receiving party in all of the transfers that preceded the filing of the petition and the purpose of those transfers was identified as "personal needs," thereby indicating that the

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funds were transferred for the Beneficiary's personal use rather than for the benefit of the Petitioner, as claimed. While the January 2016 fund transfer receipt identified the Petitioner's foreign affiliate as the remitting party, it, like the prior fund transfers, also named the Beneficiary as the intended recipient of the funds and indicated that the purpose of the transfer was for "personal needs." The Petitioner also submitted its proposed organizational chart, which depicted three projected new hires and an updated Business Plan in which the Petitioner listed the job duties of the projected hires and provided charts ,illustrating numerical data about increased grocery store sales, the number of small retail operations in New York with fewer than five employees, and New York census data based on racial and religious backgrounds with a focus on the various Asian subgroups.

In denying the petition the Director concluded that the Petitioner's submissions were not sufficient to establish that the Petitioner would support the Beneficiary in an executive capacity \Vithin one year of the petition's approval. In consideration of the Petitioner's claim that the Beneficiary would manage a cashier, a grocery clerk, and a halal meat cutter and fruit and vegetable sales person at the end its first year of operation, the Director determined that the Beneficiary would assume the role of a first-line supervisor who would oversee three nonprofessional workers. The Director pointed out that the Petitioner' s projected staff would not include professional, managerial, or supervisory positions and concluded that certain components of the Beneficiary's job description are vague, while others indicate that the Beneficiary would carry out nonexecutive job duties based on the lack of personnel to carry them out. Lastly, the Director found that the Petitioner did not submit documentation to support the timetables and business benchmarks it provided in the Business Plan.

On appeal, the Petitioner submits a brief contending that four employees \vere sufficient to relieve the Beneficiary from the foreign entity's day-to-day functions and support him in an executive capacity, implying that a similar arrangement within the Petitioner's own organizational hierarchy would also be sufficient to support the Beneficiary in an executive capacity. The Petitioner also provides evidence in the form of its own January and February 2016 bank statements and its sales and purchase invoices as well as documents pertaining to an affiliated restaurant business abroad.

When examining the executive capacity of the Beneficiary, we look first to the Petitioner's description of the job duties. See 8 C.F.R. § 214.2(1)(3)(ii). The Petitioner's description of the job duties must clearly describe the duties performed by the Beneficiary and indicate whether such duties are in an executive capacity. Jd.

The definition of executive capacity has two parts. First, the Petitioner must show that the Beneficiary performs and will perform certain high-level responsibilities. Champion World, Inc. v. INS, 949 F.2d 1533 (9th Cir. 1991) (unpublished table decision). Second, the Petitioner must prove that the Beneficiary will be primarily engaged in executive duties, as opposed to ordinary operational activities alongside the Petitioner's other employees. See Family Inc. v. USCIS, 469 F.3d 1313, 1316 (9th Cir. 2006); Champion World, 940 F.2d 1533.

In addition, it is important to note that when a new business is established and commences operations, the regulations recognize that a designated executive responsible tor or assisting with the

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set-up of operations will be engaged in a variety of activities not normally performed by employees at the executive level and that often the full range of executive responsibility cannot be performed. In order to qualify for L-1 nonimmigrant classification during the first year of operations, the regulations require the petitioner to disclose the business plans and the size of the United States investment, and thereby establish that the proposed enterprise will support an executive position within one year of the approval of the petition. See 8 C.F.R. § 214.2(l)(3)(v)(C). 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 an executive who will primarily perform qualifying duties.

In the instant matter, we considered the job duties, the Petitioner's funds and evidence of any capital investments at the time of filing, and the personnel projections as put forth in the Petitioner's tv.·o Business Plans. After having conducted our review of the petition and the evidence of record, including materials submitted in support of the appeal, we conclude that the Petitioner has not submitted sufficient evidence to overcome the Director's findings.

As discussed above, the Petitioner's various descriptions of the Beneficiary's proposed position are deficient in their overall lack of specific job duties and do not establish that the Beneficiary would allocate his time primarily to the performance of tasks of an executive nature within one year of approval of the petition. Specifics are clearly an important indication of whether a beneficiary's duties are primarily executive or managerial in nature, otherwise meeting the definitions \Vould simply be a matter of reiterating the regulations. Fedin Bros. Co., Ltd v. Sava, 724 F. Supp. 1103, 1108 (E.D.N.Y. 1989), aff'd, 905 F.2d 41 (2d. Cir. 1990). While we acknowledge that the Beneficiary is not expected to primarily perform in an executive capacity during the Petitioner's first year of operation, it is nevertheless critical to discuss the Beneficiary's actual role and specify the job duties he would perform during that first year as this information helps explain how the Beneficiary would ensure that the Petitioner progresses beyond the new otlice stage of operation and becomes capable of supporting the Beneficiary in an executive capacity at the end of that first-year period. Here, the job descriptions did not contain any informati~n as to the Beneficiary's duties during the first year of operation such that would adequately inform how the Beneficiary and any projected first-year support staff would work together to ensure that Petitioner is able to support the Beneficiary in an executive capacity once it exits the new office phase of operation.

Further, in reviewing the job description as it reflects the job duties the Beneficiary would be expected to perform after the Petitioner's initial year of operation, we concur with the Director in finding that the information provided was overly vague and does not lead to a meaningful understanding of the Beneficiary's actual daily tasks. Namely, the Petitioner's claim that the Beneficiary would allocate 20% of his time to directing and coordinating the grocery store's operations provides no telling information about the specific daily tasks that explain precisely what tasks reflect directing and coordinating operations. The Petitioner was similarly vague in claiming that the Beneficiary would spend another 20% of his time establishing business plans and goals and developing the Petitioner's administrative strategies geared towards improving customer service. The Petitioner did not define any plans, goals, or strategies or clarify hmv this would translate into

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Matter ~~ L-Q- USA Inc.

tasks that the Beneficiary would perform on a daily basis within the context of a small grocery store whose projected staff will include fewer than five employees. Further, while the Petitioner claimed that the Beneficiary would exerci~e discretionary authority in hiring and firing store employees and forecasting the Petitioner's staffing needs, which would cumulatively consume 20% of the Beneficiary's time, the record does not establish that the organization's projected three- or fourperson staff, would require 20% of his time on a daily or even weekly basis. In other words, it is unreasonable to claim that the Beneficiary would be hiring and firing employees on a daily or weekly basis once the Petitioner moves beyond its initial stage of operation. If users finds reason to believe that an assertion stated in the petition is not true, users may reject that assertion. See, e.g., Section 204(b) ofthe Act, 8 U.S.e. § 1154(b); Anetekhai v. INS, 876 F.2d 1218, 1220 (5th eir. 1989); Lu-Ann Bakery Shop, Inc. v. Nelson, 705 F. Supp. 7, 10 (D.D.e. 1988); Systronics Corp. v. INS, 153 F. Supp. 2d 7, 15 (D.D.e. 2001). The cumulative effect of these ambiguities in an overly broad job description is that we are unable to gauge what job duties would account for approximately 60% of the Beneficiary's time.

In addition, while reviewing financial documents and sales reports are not in themselves nonexecutive tasks, the Director properly indicated that establishing who performs the underlying tasks, such as compiling data and actually preparing the reports for the Beneficiary's review, is critical to assessing whether the Beneficiary would have the support necessary to allow him to focus on primarily executive job duties. Here, while the Petitioner claims that the Beneficiary would only be responsible for reviewing various reports and documents, it provides no evidence to establish that it would have the personnel to relieve the Beneficiary from having to perform the underlying nonexecutive functions that are required to create the reports. A petitioner's unsupported statements are of very limited weight and normally will be insufficient to carry its burden of proof. See Matter of Sojjici, 22 I&N Dec. 158, 165 (eomm'r 1998) (citing Matter (~f Treasure Crafi o_f Cal., 14 I&N Dec. 190 (Reg'l eomm'r 1972)); see also Matter o_f Chawathe, 25 I&N Dec. 369, 376 (AAO 201 0). The Petitioner must support its assertions with relevant, probative, and credible evidence. See Matter o_fChawathe, 25 I&N Dec. at 376.

The Petitioner also provided inconsistent information as to its hiring projections within its first year of operation. Namely, a review of the Petitioner's original Business Plan shows that the Petitioner planned to hire two employees "by the end of year one (1) of its operation" and estimated that its monthly payroll expenses would total $8000. However, a review of the subsequent Business Plan, which the Petitioner provided in response to the RFE, shows that not only did the Petitioner include an additional employee in its first-year hiring plan, but that the new hiring plan was considerably more accelerated in projecting the hiring of three employees "by the first quarter by the first year of operation." While the Petitioner accounted for the difference in its hiring projections by increasing its estimated monthly payroll expense to $10,166.67 as opposed to the initial estimate of $8000, the Petitioner has not resolved the inconsistency regarding its hiring projections through the submission of independent, objective evidence pointing to where the truth lies. See Matter of Ho, 19 I&N Dec. 582, 591-92 (BIA 1988). We note that a petitioner may not make material changes to a petition in an effort to make a deficient petition conform to users requirements. Matter of Izummi, 22 I&N Dec. 169, 176 (Assoc. eomm'r 1998). Here, the Petitioner has neither acknowledged nor provided


information to clarify the inconsistent claims it made in its two Business Plans regarding its hiring projections.

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 10l(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 a beneficiary to direct and a 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. A 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." !d.

In the present matter, not only did the Petitioner provide inconsistent information regarding its projected hiring timeline, but also neglected to demonstrate that it would have a tier of managerial employees through whom the Beneficiary ·could be said to "direct the management" of the organization. Given these considerable deficiencies, the Petitioner has not established that a statT of two employees - as the Petitioner originally claimed - or even three employees - as the Petitioner subsequently claimed in its RFE response - would be sufficient to elevate the Beneficiary's store manager position to an executive level. While no beneficiary is required to allocate 100% of his time to executive-level tasks, each petitioner must establish that the non-qualifying tasks its beneficiary would perform at the end of the new office period are only incidental to the proposed position. 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); see also 1vfatter of Church Scientology International, 19 I&N Dec. 593, 604 (Comm'r 1988). Here, the Petitioner claims that the Beneficiary would be employed in an executive capacity and would enjoy a high level of discretionary authority over the Petitioner's business activities. However, conclusory assertions regarding the Beneficiary's employment capacity are not sufficient. Merely repeating the language of the statute or regulations does not satisfy the petitioner's burden of proof. See Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1103, 1108 (E.D.N.Y. 1989), aff'd, 905 F. 2d 41 (2d. Cir. 1990); A~yr Associates, Inc. v. Meissner, 1997 WL 188942 at *5 (S.D.N.Y.).

We further find that the Petitioner provided insufficient evidence to establish that its foreign affiliate made capital contributions of over $110,000 to support the U.S. operation during its initial year. As previously noted, all but one of the fund transfer receipts that the Petitioner provided in response to the RFE show that the Beneficiary was both the originator and recipient of the funds and refer to "personal needs" as the purpose of all of the fund transfers. While the fund transfer that took place in January 2016 originated from the Petitioner's foreign affiliate, it too shows that the transferred

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funds went to the Beneficiary for "personal needs." Thus, despite the Petitioner's claims about the foreign affiliates capital contributions, we find that the record lacks any corroborating evidence to support the claim that the foreign affiliate provided adequate funding to support the Petitioner during its initial start-up year. As indicated above, a petitioner's unsupported statements are of very limited weight and normally will be insufficient to carry its burden of proof, particularly \Vhen supporting documentary evidence would reasonably be available. See ,\fatter ofSoffici, 221&N Dec. at 165.

Lastly, while the Petitioner's second Business Plan includes a number of demographic information about the changes in population throughout the state of New York and the the Petitioner provided no discussion to clarify hmv this information supports the gross income projections it made in either of its Business Plans.

On appeal, the Petitioner restates its claim and contends that the Director did not consider the Petitioner's reasonable needs. The Petitioner's claim, however, is unsupported in light of the above discussion, which indicates that the Petitioner provided deficient and inconsistent evidence to support its claims. Fmiher, there is no indication that the Director's finding regarding the Beneficiary's employment capacity was based primarily on her assessment of the Beneficiary's firstyear job duties. Rather, the Director considered the Petitioner's anticipated staffing and organizational hierarchy as well as the Beneficiary's job description to formulate the basis for her conclusion. Neither the Petitioner's statements nor the additional evidence submitted on appeal are sufficient to overcome the Director's conclusion.

B. Executive Capacity Abroad

The second issue to be addressed in this proceeding is whether the Petitioner provided sufficient evidence to establish that the Beneficiary was employed abroad in an executive capacity.

In its supporting statement the Petitioner claimed that the Beneficiary "has been managing the foreign company, for years as a Store Manager." The Petitioner provided the same list of job duties and percentage breakdown as the one provided with regard to the proposed employment, claiming that the Beneficiary directed the grocery store operations abroad, which similarly included managing the store's subordinate staff, assigning their job duties, and creating their respective work schedules as well as establishing business goals and policies to ensure the grm:vth of the operation while exercising discretionary authority over business matters as owner of the entire operation. The Petitioner did not specify which employees or what positions comprised the foreign entity's organizational hierarchy.

In the RFE, the Director made similar observations as those pertaining to the Beneficiary's proposed employment, stating that the Petitioner provided a deficient job description that was vague and insufficient to lead to the conclusion that the Beneficiary was employed abroad in an executive capacity. The Director instructed the Petitioner to provide, in part, the following additional evidence: (1) an organizational chart showing the organizational structure and staffing levels for the foreign entity; (2) a list of job titles and job duties of the Beneficiary's subordinates; and (3) a letter

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from an authorized representative of the foreign entity describing the Beneficiary's job duties and the percentage of time allocated to each job duty. With regard to the job description, the Director stated that the Petitioner should state how the Beneficiary met each prong of the four-prong definition of executive capacity.

In response, the Petitioner provided a statement claiming that th~ Beneficiary "established all the business plans and policies ... and also directed the operations of the company." The statement also included the following supplemental percentage breakdown of the Beneficiary's foreign job duties:

• Direct and coordinate the operations of the store; (30%) o Make subordinate staff work schedules and ensure that they adhere to store

procedures; o Supervise, train and provide directions the [sic] cashier to ensure that functions

are performed efficiently and customers' complaints are solved; o Oversee products stocking and products assortment to ensure that store policies

and standards are met; o Direct and supervise meat, fruit and vegetable sales and the stocking of perishable

and frozen items; o Oversee unloading of trucks and inventory counts; o Direct the operations of the store and identify where improvements in service are

required to meet store standards, and establish procedures or changes to make improvements;

o Develop and maintain a team concept to improve staff morale and working environment;

o Ensure that all federal, state, and company regulations and standards for food safety, weights and measures, store safety, employees [sic] safety and sanitation are met;

• Establish business plans and goals, and develop administrative strategies to improve customer service, drive store sales and increase profitability; (20%) o Monitor and control all costs and expenses; o Market merchandise by studying advertising, sales promotion and display plans; o Maintain an ongoing awareness of competitive activity in the immediate

marketing area; o Cultivate superior customer relations and set high standards and modeling

behavior for optimum customer services; • Review financial documents or sales reports to ensure achievement of business goals;

(15%) o Review reports and records of sales and inventories, and check gross monthly

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profits; • Make effective and objective decisions regarding operational choices in work

procedures, inventory application, ordering and scheduling; (15%)

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o Supervise selection, receipt, pncmg, preparation and promotion of designated products to ensure goals established for sales, margin, inventory turns and labor expense [sic] are achieved;

o Monitor all vendors and oversee the verification of deliveries against invoices; o Approve contracts; o Supervise the ordering of products and supplies in compliance with the policies

and goals of the store; • Forecast staffing needs and develop recruiting strategies to provide optimal staffing in

all areas; ( 1 0%) o Motivate employees in a manner that builds a high performing team and

minimizes turnover; o Make staffing adjustments as needed to meet the needs of business; o Ensure that store is appropriately statTed during business hours and is opened and

closed in a timely manner each day; and • Exercise discretionary authority over hiring and tiring store employees. (I 0%)

o Maintain store staff by recruiting, interviewing, selecting, orienting and training employees; and ·

o Appraise performance results, provide feedbacks, and discipline employees. Jd. [sic]

In each instance, the Petitioner allocated a time constraint to the broader function, leaving the underlying job duties without time allocations, despite the Director's request for the Petitioner to assign a percentage of time to each of the Beneficiary's job duties. As the Beneficiary's former assignment was comprised of both executive and nonexecutive functions, it is critical to establish precisely how much of his time was allocated to executive functions so that we can determine whether the Beneficiary spent his time primarily performing tasks within an executive capacity. As previously noted, 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; see also Matter of Church Scientology International, 19 I&N Dec. at 604. Here, the format in which the Petitioner listed the Beneficiary's foreign job duties precludes a determination of precisely how much of the Beneficiary's time was allocated to executive tasks versus operational tasks, such as managing and overseeing the work of a non-managerial subordinate staff, engaging in marketing activities, and directly engaging with the store's customers.

Further, despite the Petitioner's reliance on the four-prong definition of executive capacity, whose first component requires the beneficiary to direct the management of an organization, the record indicates that the Beneficiary allocated an undisclosed amount of time to managing four grocery store employees whose positions were included in the foreign entity's organizational chart. While we have considered the Beneficiary's placement at the highest leve.l of the foreign entity's organizational hierarchy, as previously discussed, the definition of executive capacity encompasses a variety of elements, including a subordinate level of managerial employees for a beneficiary to direct, as well as a complex organizational hierarchy within which a beneficiary occupies a top-level

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position. In the instant matter, despite the Beneficiary's top-level, \vhich allows him unfettered discretionary authority over all business matters, neither the organizational chart nor the employee job descriptions indicate that the Beneficiary met the first prong of the definition of executive capacity, which requires the Petitioner to establish that the Beneficiary directed the management of the foreign organization. As discussed above, the record does not establish that the foreign entity had a tier of managerial employees through whom the Beneficiary could have directed the organization. Rather, the record indicates that the Beneficiary's primary concern was to manage a grocery store and to oversee the store's nonprofessional staff, which was comprised of a cashier, a grocery clerk, a halal meat cutter/grocery clerk, and a vegetable and fruit sales/cashier.

In addition, while the record indicates that the Beneficiary's four subordinate employees relieved the Beneficiary from having to carry out certain operational tasks involved in the operation of a grocery store, the Petitioner has not provided sufficient evidence to establish that the foreign entity had the ability to support the Beneficiary in an executive capacity such that the Beneficiary's time would be primarily allocated to tasks of an executive nature. Namely, the Beneficiary's job description contains a number of ambiguities, which preclude a meaningful understanding of the actual underlying tasks associated with several ofthe Beneficiary's broadly stated job responsibilities. For instance, while the Petitioner's RFE response statement indicates that the Beneficiary directed the grocery store's operations, established procedures for changes or improvements, developed a "team concept to improve staff morale," and cultivated "superior customer relations," the Petitioner did not clarify the specific means, i.e., the actual daily tasks, through which the Beneficiary achieved these business goals; nor did the Petitioner establish that the Beneficiary's underlying tasks were primarily of an executive nature. The Petitioner similarly neglected to explain what tasks were involved in monitoring and controlling expenses or maintaining awareness of competition. It is logical to assume that controlling expenses would involve the performance of certain basis bookkeeping tasks while keeping awareness of competition would require some market research, none of \Vhich would be deemed as tasks of an executive nature. The record also does not include any information to establish who performed other administrative tasks, such as payroll and taxes. Information about the specific underlying job duties is critical as the actual duties themselves reveal the true nature of the employment. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1103, 1108 (E.D.N.Y. 1989), afl'd, 905 F .2d 41 (2d. Cir. 1990).

In sum, while the Petitioner adequately demonstrated that the Beneficiary had discretionary authority over all matters concerning the foreign entity's operation and assumed a position at the top of the foreign entity's organizational hierarchy, it provided a deficient job description, which lacked the requisite degree of detail about the Beneficiary's daily tasks and did not disclose how much of the . Beneficiary's time was allocated to nonexecutive tasks, including overseeing the work of a operational support staff and other administrative functions as mentioned above. While the Petitioner challenges the denial on appeal, claiming that the Director "ignored the significant facts," it cannot successfully overcome the denial merely by paraphrasing the statutory definition of executive capacity while offering little evidence .that points to specific executive job duties that the Beneficiary performed and establishing that it was those job duties that consumed the primary portion of the Beneficiary's time. While no beneficiary is required to allocate 100% of his time to

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executive-level tasks, the petitioner must establish that the non-qualifying tasks its beneficiary would perform are only incidental to the proposed position. As noted earlier in this decision, 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 10l(a)(44)(A) and (B) of the Act (requiring that one "primarily" perform the enumerated managerial or executive duties) ; see also Matter of Church Scientology International, 19 I&N Dec. at 604.

Further, the Petitioner does not support its contention that the Director failed to consider the foreign entity's reasonable needs. While the Director did not specifically discuss the foreign entity's reasonable needs, we find that the Petitioner's representations of the Beneficiary's job duties during his employment abroad as well as the foreign entity's organizational hierarchy indicate that the reasonable needs of the foreign entity could not have been met if the Beneficiary were to have primarily focused on performing job duties of an executive nature.

Lastly, the Petitioner discusses the Beneficiary' s position as owner and restaurant manager of a restaurant in On appeal, the Petitioner provides evidence pertaining to the foreign restaurant, including an organizational chart and job descriptions for the Beneficiary and his claimed subordinates, seemingly in an effort to establish an alternate basis for claiming that the Beneficiary has the requisite employment abroad in an executive capacity. However, the Petitioner does not establish that the Beneficiary held a full-time position with the restaurant for one continuous year during the three-year time period that preceded the filing of the instant petition; nor did the Petitioner establish that the Beneficiary's job duties as the restaurant 0\vner and manager of a restaurant staff comprised of three cooks, two stock workers, one cashier, two waiters, and two food deliverymen were primarily of an executive nature.

In light of the analysis provided above, we find that the Petitioner has not established that the Beneficiary was employed abroad in an executive capacity and the basis of this finding the instant petition cannot be approved.

III. EMPLOYER-EMPLOYEE RELATIONSHIP

In addition, while not addressed by the Director, a remaining issue to be examined is whether the Petitioner established that the Beneficiary and the foreign entity had an employer-employee relationship at the time of the Beneficiary's claimed employment abroad and whether the Petitioner has such a relationship with the Beneficiary.

Section 101(a)(l5)(L) of the Act states that only aliens who were "employed" abroad and are coming to the United States "to continue to render services to the same employer or to an affiliate or subsidiary thereof' will merit classification as an intracompany transferee. 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, where he will be temporarily employed in a managerial or executive capacity. This is in contrast to provisions in the Act, such as section 101 (a)(l5)(E), which

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permits the alien to file a nonimmigrant petition on behalf of himself or herself provided that the alien meets certain other conditions regarding a treaty trader or treaty investor.

The factors of ownership and control are critical in determining whether the Beneficiary had an employer-employee relationship with his employer abroad and whether he has such a relationship with the Petitioner. See Clackamas Gastroenterology Assocs. P. C. v. Wells, 538 U.S. 440, 451 (2003) (quoting Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318, 324 (1992)).

In the matter at hand, the record indicates that Beneficiary directly owns and controls the Petitioner and the foreign entity where the Beneficiary was previously employed. The record further shows that the Beneficiary assumed the top-most position within the foreign entity's organization and that the same would be true of the Beneficiary's proposed position with the Petitioner. The Petitioner claims that the Beneficiary was not and would not be subject to a higher authority in either of his respective positions. Thus, by virtue of owning and controlling both the Petitioner and the foreign entity that owns the Petitioner, the Beneficiary's employer-employee relationship with either entity is compromised. For this additional reason, the appeal will be dismissed.

IV. CONCLUSION

The petition will be denied and the appeal dismissed for the above 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 with the petitioner. Section 291 of the Act, 8 U.S.C. § 1361; Matter ofOtiende, 26 I&N 127, 128 (BIA 2013). Here, that burden has not been met.

ORDER: The appeal is dismissed.

Cite as Matter ofL-Q-USA Inc., ID# 55839 (AAO Dec. 29, 2016)

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