Alaska Employment Law

A small business (4 employees) petitioned for an L-1A nonimmigrant visa for its CEO and chief shareholder.   A 9th Circuit panel has now affirmed USCIS’ denial of the petition, holding that the executive was primarily engaged in operational rather than managerial responsibilities.  The Court held:

We agree with Petitioners that the INA, as amended, renders managers of an essential business function eligible for an L-1A classification even if they supervise no employees at all.  . . .   We also acknowledge the agency’s observation that dos Santos holds a leadership position at the very top of BQS’s corporate structure. Yet regardless of an intra-company transferee’s position in the organizational hierarchy of his employer, the INA imposes the burden on the transferee and his or her employer to demonstrate that the transferee’s responsibilities are “primarily” managerial. . . .

In summarizing the evidence, the AAO acknowledged dos Santos’s leadership role at the top of BQS’s hierarchy, but also concluded that dos Santos’s direct involvement in the corporation’s daily operations was necessary for its success and that such fact precluded dos Santos from qualifying as a managerial employee. In other words, the AAO determined that BQS has not yet reached the level of organizational sophistication in which dos Santos could devote his primary attention to managerial duties as opposed to operational ones, even though he held a position at the head of BQS’s corporate structure.

We cannot conclude that the record compels a contrary conclusion. BQS is a small business that paid only three employees other than dos Santos during the quarter preceding its petition to extend his visa. As we have held before, an organization’s small size, standing alone, cannot support a finding that its employee is not acting in a managerial capacity, but size is nevertheless a relevant “factor in assessing whether [an organization’s] operations are substantial enough to support a manager.” . . .  Under the plain terms of the INA, dos Santos cannot qualify for an L-1A visa simply because he performs managerial tasks; such tasks must encompass his primary responsibilities. . . .  BQS bore the burden of demonstrating that dos Santos was primarily engaged in overseeing essential functions of BQS’s business rather than performing them himself. While the record contains evidence that dos Santos performed managerial tasks, it does not compel the conclusion that such tasks comprised his primary responsibilities at BQS.

Brazil Quality Stones, Inc. v. Chertoff, 2008 WL _______ (9th Cir. July 10, 2008)(citations omitted)