AAU Reexamines Harrison Pacific Case
Summary
Harrison Pacific v. INS, WAC 92 192 51184 (WSC) (SFR) February 14, 1994. Hirlal Brothers is a small trading company in Hong Kong. It created a subsidiary, Harrison Pacific, Inc., in the San Francisco Bay Area. The son of the company's owner was issued L-1 visa to serve as President of the new California corporation.
He came to the United States about four months after the L-1 petition was approved and began conducting market research after which he started running the corporation. When he submitted his L-1 extension application, Harrison Pacific had only been in operation for about five months and had hired one employee in addition to the President.
The President's L-1 petition extension was denied and an appeal taken to the AAU. Additional evidence was submitted showing the company had hundreds of thousands of dollars in income and had hired six employees. The appeal was also supported by the testimony of a Professor from the University of San Francisco School of Business, who explained the President was managing the company.
The AAU denied Harrison Pacific's appeal, finding that the President was not a manager as he did not oversee tiers of employees or professionals. A Motion to Reconsider was submitted with additional evidence of the company's continued expansion including its seven employees. Again the AAU denied the extension application, finding the President was not a manager.
A complaint was filed in Federal District Court in San Francisco on November 19, 1993. Before the case was briefed, the AAU reopened the application and issued an opinion, approving the case.
The AAU concluded that though the beneficiary could not be regarded as statutorily eligible for classification as a manager based on his supervision of other company employees, “he has managerial control and authority overall of the functions and operations of the company ... (he) operates at a senior level within the hierarchy and he exercises discretion over the day-to-day operations of these functions.”
(Courtesy of Martin Lawler; originally published in the June 1994 AILA Monthly Mailing)
Case
U.S. Department of Justice
Immigration and Naturalization Service
OFFICE OF ADMINISTRATIVE APPEALS
425 EYE STREET N.W.
ULLB, 3rd Floor
Washington, D.C. 20536
FILE: WAC 92 192 51184 Western Service Center (SFR)
IN RE:
Petitioner: Harrison Pacific Inc.
Beneficiary: [REDACTED]
PETITION: Petition to Classify Nonimmigrant as Intracompany Transferee Pursuant to Section 101(a)(15)(L) of the Immigration and Nationality Act, 8 U.S.C. 1101(a)(15)(L)
IN BEHALF OF PETITIONER:
Martin J. Lawler
275 Battery St., Suite 2920
San Francisco, CA 94111-3339
DISCUSSION: The nonimmigrant visa petition was denied by the director, Western Service Center. An appeal from the director's decision to deny the visa petition was dismissed by the Associate Commissioner for Examinations. In the subsequent motion, the Associate Commissioner affirmed the previous Service decisions to deny the petition. The matter will be reopened on Service motion pursuant to 8 C.F.R. 103.5(a)(5) and the petition will be approved.
The petitioner is a trading company engaged in importing and exporting a variety of products. The petitioner was granted authorization to employ the beneficiary temporarily in the United States as an intracompany transferee for a one-year period from June 4, 1991 until June 4, 1992 as a manager or executive to open the petitioner's new office in the United States. With this petition filed on June 1, 1992, the petitioner seeks to extend its authorization to employ the beneficiary temporarily in the United States as its president and manager for an additional three-year period (until June 5, 1995). The director determined that the petitioner had not established that the beneficiary had been or would be employed in the United States in a primarily managerial or executive capacity. The Associate Commissioner concurred.
Counsel argued on appeal, as on motion, that the beneficiary is eligible for L-1 classification based on his managerial duties.
At issue in this matter is whether the petitioner has established that the beneficiary's duties have been and will continue to be primarily managerial in nature. Section 101(a)(44)(A) of the Immigration and Nationality Act (the Act), 8 U.S.C. 1101(a)(44)(A), defines "managerial capacity" as an assignment within an organization in which the employee primarily:
- manages the organization, or a department, subdivision, function, or component of the organization;
- 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;
- 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
- exercises discretion over the day-to-day operations of the activity or function for which the employee has authority.
The statute and regulations at 8 C.F.R. 214(l)(1)(ii)(B)(4) provide 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. Counsel has stated that the oversight of employees is not required under the statutory definition. Although this is true regarding one who manages an essential function of the organization, counsel has, nonetheless, focused on the beneficiary's supervisory duties on appeal as well as on motion. The record reflects that Professor Alev Efendioglu of the University of San Francisco School of Business also emphasized the beneficiary's supervision of others. In pertinent part, Professor Efendioglu's second opinion regarding the beneficiary's managerial responsibilities stated that the beneficiary's primary role in the petitioner's organization is to supervise the activities of his employees. The other employees of the company are in either sales or clerical positions. They are not considered professionals. Therefore, as concluded by the director and upheld by the Associate Commissioner, the beneficiary is not statutorily eligible for classification as a manager based on his supervision of other company employees.
After a careful review of the voluminous record, however, it appears that the beneficiary manages an essential function of the organization. He has managerial control and authority over all of the functions and operations of the company. In addition, the beneficiary operates at a senior level within the organization's hierarchy and he exercises discretion over the day-to-day operations of these functions. Consequently, the petitioner has established that it is eligible for an extension of its authority to employ the beneficiary temporarily in the United States as an intracompany transferee, and the petition will be approved.
In visa petition proceedings, the burden of proving eligibility for the benefit sought remains entirely with the petitioner. Section 291 of the Act, 8 U.S.C. 1361. Here, the petitioner has met that burden. Accordingly, the previous decisions of the director and the Associate Commissioner will be withdrawn. The petition will be approved.
ORDER: The previous Service decisions in this matter are withdrawn. The petition is approved.
DATED: FEB 16 1994
FOR THE ASSOCIATE COMMISSIONER
EXAMINATIONS
/s/ Joseph D. Cuddihy for
Terrance M. O'Reilly, Director
Administrative Appeals Unit