Administrative Appeals Office Decisions L-1 NIVs in 2012
 

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Administrative Appeals Office Decisions L-1 NIVs in 2012 Document Transcript

  • 1. To obtain a pdf version of this document, e-mail: joseph.whalen774@gmail.com Page 1 Administrative Appeals Office Decisions Category D7 - Intracompany Transferees (L-1A & L-1B) Decisions Issued in 2012 Compiled by Joseph P. Whalen (August 15-30, 2013) AAO Non-Precedent L-Intracompany Transferee Decisions of 2012 Link to Decision Result, Excerpts, or Commentary Jan032012_01D7101.pdf Jan032012_02D7101.pdf APPEAL SUSTAINED [L1-A] This executive will open a “New Office” for a management consultancy firm. The petitioner asked for three years but is limited to one year for a “New Office” “The director denied the petition on two independent and alternative grounds, concluding that the petitioner failed to establish: (1) that it has secured sufficient physical premises to house the new operation; and (2) that the beneficiary will be employed in a bona fide manager or executive position within one year of the beginning of operations for the United States business entity.” ISSUES: 1.) Premises secured? 2.)Managerial or Executive duties? . APPEAL DISMISSED [L1-A] “The director denied the petition on the grounds that the petitioner failed to establish a qualifying relationship with the foreign employer and that the beneficiary would be working in a managerial or executive capacity.”
  • 2. To obtain a pdf version of this document, e-mail: joseph.whalen774@gmail.com Page 2 AAO Non-Precedent L-Intracompany Transferee Decisions of 2012 Link to Decision Result, Excerpts, or Commentary Jan032012_03D7101.pdf1 Jan032012_04D7101.pdf Jan032012_05D7101.pdf Jan042012_01D7101.pdf Jan042012_02D7101.pdf Jan042012_03D7101.pdf SUMMARILY DISMISSED [L1-A] APPEAL DISMISSED [L1-A] New Office extension denied. Multiple issues including non-disclosure of prior extension petition being denied. SUMMARILY DISMISSED [L1-A] APPEAL DISMISSED [L1-A] APPEAL DISMISSED [L1-A] MOTION DISMISSED [L1-B] Another Chinese Cook Case The purpose of a motion to reopen is different from the purpose of an appeal. While the AAO conducts a comprehensive, de novo review of the entire record on appeal, the AAO's review in this matter is limited to the narrow issue of whether the petitioner has presented and documented new facts to warrant the reopening of the AAO's decision to dismiss the petitioner's appeal on April 3, 2009. The AAO previously conducted a de novo review of the entire 1 Several January Decisions, posted earlier, were closely examined in another documents found at: http://www.slideshare.net/BigJoe5/aao-decisions-for-intracompany-transferee-cases-in-january-2012
  • 3. To obtain a pdf version of this document, e-mail: joseph.whalen774@gmail.com Page 3 AAO Non-Precedent L-Intracompany Transferee Decisions of 2012 Link to Decision Result, Excerpts, or Commentary Jan062012_01D7101.pdf Jan062012_02D7101.pdf record of proceeding, an appellate decision was issued, and the deficiencies were expressly stated in the AAO's 10- page decision. Upon review, the previous decisions of the director and the AAO will not be disturbed. APPEAL DISMISSED AS MOOT [L1-A] SUMMARILY DISMISSED [L1-A] The “Middleman” Case “…. The petitioner, a Florida limited liability company, states that it is engaged in a multi sector business including fashion retail, restaurants, food production, and industrial services. The petitioner claims to be an affiliate of located in Paris, France. The beneficiary was previously granted L-IA status for a period of three years, from July 2006 to July 2009, and the petitioner now seeks to extend his status so that he may continue to serve in the position of managing member. On November 5, 2009, the director denied the petition, concluding that the petitioner failed to establish that the beneficiary has been or will be employed in a managerial capacity. In denying the petition, the director found that the beneficiary is not the manager of a function as the only function he appears
  • 4. To obtain a pdf version of this document, e-mail: joseph.whalen774@gmail.com Page 4 AAO Non-Precedent L-Intracompany Transferee Decisions of 2012 Link to Decision Result, Excerpts, or Commentary Jan062012_03D7101.pdf to perform is that of acquiring/investing in businesses in the United States. The director further found that the beneficiary is not actually managing the function, but is merely acting as the middleman/agent for the overseas office in acquiring U.S. businesses. On December 7, 2009, counsel for the petitioner submitted the Form I-290B to appeal the denial of the underlying petition. The director declined to treat the appeal as a motion and forwarded the appeal to the AAO for review. Counsel for the petitioner marked the box at part two of the Form I-290B to indicate that a brief and/or additional evidence would be submitted to the AAO within 30 days. As of this date, the appeal brief has not been received by the AAO, thus, the AAO deems the record complete and ready for adjudication.” SUMMARILY DISMISSED [L1-A] “On October 13, 2009, the director denied the petition, concluding that the petitioner failed to establish that the beneficiary has been or will be employed in a managerial or executive capacity. In denying the petition, the director found that the vague and brief list of duties provided for the beneficiary fail to establish that he will be primarily employed in a managerial or executive capacity. The director further found that
  • 5. To obtain a pdf version of this document, e-mail: joseph.whalen774@gmail.com Page 5 AAO Non-Precedent L-Intracompany Transferee Decisions of 2012 Link to Decision Result, Excerpts, or Commentary Jan102012_01D7101.pdf Jan112012_01D7101.pdf Jan112012_02D7101.pdf the beneficiary will not be involved in the supervision and control of the work of other supervisory, professional, or managerial employees who will relieve him from performing the services of the U.S. company. The director observed that the petitioner has not shown that the beneficiary functions at a senior level within the organizational hierarchy other than in position title.” Brief not received after over 2 ½ years. REJECTED AS UNTIMELY [L1-A] APPEAL DISMISSED [L1-A] Restaurant “Manager”. APPEAL DISMISSED [L1-A] …automobile export and sales business… The director denied the petition on two independent and alternative grounds, concluding that the petitioner failed to establish: (1) that the petitioner has been doing business in the United States in accordance with the regulation; and (2) that the beneficiary will be employed in the United States in a primarily managerial or executive capacity.
  • 6. To obtain a pdf version of this document, e-mail: joseph.whalen774@gmail.com Page 6 AAO Non-Precedent L-Intracompany Transferee Decisions of 2012 Link to Decision Result, Excerpts, or Commentary Jan112012_03D7101.pdf Jan172012_01D7101.pdf APPEAL DISMISSED [L1-A] WITHDRAWN & REMANDED [L1-A] Discussion The one-year "new office" provision is an accommodation for newly established enterprises, provided for by U.S. Citizenship and Immigration Services (USCIS) regulation, that allows for a more lenient treatment of managers or executives that are entering the United States to open a new office. 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. In an accommodation that is more lenient than the strict language of the statute, the "new office" regulations allow a newly established petitioner one year to develop to a point that it can support the employment of an alien in a primarily managerial or executive position. In creating the "new office" accommodation, the legacy Immigration and Naturalization Service (INS)
  • 7. To obtain a pdf version of this document, e-mail: joseph.whalen774@gmail.com Page 7 AAO Non-Precedent L-Intracompany Transferee Decisions of 2012 Link to Decision Result, Excerpts, or Commentary recognized that the proposed definitions of manager and executive created an "anomaly" with respect to the opening of new offices in the United States since "foreign companies will be unable to transfer key personnel to start-up operations if the transferees cannot qualify under the managerial or executive definition." 52 Fed. Reg. at 5740. The INS recognized that "small investors frequently find it necessary to become involved in operational activities" during a company's startup and that "business entities just starting up seldom have a large staff." Id. Despite the fact that an alien engaged in the start up of a new office may not be "primarily" employed in a managerial or executive capacity, as then required by regulation and later by statute, the INS amended the final regulations to allow for L classification of persons who are coming to the United States to open a new office as long as "it can be expected ... that the new office will, within one year, support a managerial or executive position." Id. 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. See generally, 8 C.F.R. § 214.2(l)(3)(v). At the time of filing the petition to open a "new office," a
  • 8. To obtain a pdf version of this document, e-mail: joseph.whalen774@gmail.com Page 8 AAO Non-Precedent L-Intracompany Transferee Decisions of 2012 Link to Decision Result, Excerpts, or Commentary petitioner must affirmatively demonstrate that it has acquired sufficient physical premises to house the new office and that it will support the beneficiary in a managerial or executive position within one year of approval. Specifically, 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. Upon review, counsel's assertions are persuasive. The AAO finds sufficient evidence to establish that the beneficiary will be employed in a bona fide managerial or executive position within one year of the beginning of operations for the United States business entity. Contrary to the director's observations, the petitioner has provided a description of the beneficiary's duties sufficient to establish that his duties are primarily related to the management of the petitioner's hotel, and not to produce a product, provide a service, or perform other non-managerial functions. The evidence submitted establishes that the beneficiary will supervise and control the work of subordinate managerial and supervisory employees and exercise authority to hire and fire employees under his supervision. See sections 101(a)(44)(A)(ii) and (iii) of the Act.
  • 9. To obtain a pdf version of this document, e-mail: joseph.whalen774@gmail.com Page 9 AAO Non-Precedent L-Intracompany Transferee Decisions of 2012 Link to Decision Result, Excerpts, or Commentary Jan302012_01D7101.pdf Furthermore, the AAO notes that section 101(a)(44)(A) of the Act does not require that the beneficiary supervise only professionals; the beneficiary may supervise other supervisory or managerial employees as is the case here. The hotel operations manager will manage the day- to-day functions of the company as well as low-level personnel while the beneficiary attends to more executive duties like budgeting, strategic planning, and negotiating alliances for new business. The AAO is also satisfied that the beneficiary exercises discretion over the day-to-day operations of the hotel, as required by section 101 (a)(44) (A)(iv) of the Act. While the beneficiary will undoubtedly be required to perform some marketing and administrative tasks, the AAO is persuaded that the majority of the day-to- day non-managerial tasks required to operate the business will be carried out by the beneficiary's subordinates within one year. The petitioner need only establish that the beneficiary devotes more than half of his time to managerial or executive duties. The petitioner has met that burden.” Also addresses “Qualifying Relationship”. APPEAL DISMISSED AS MOOT [L1-A]
  • 10. To obtain a pdf version of this document, e-mail: joseph.whalen774@gmail.com Page 10 AAO Non-Precedent L-Intracompany Transferee Decisions of 2012 Link to Decision Result, Excerpts, or Commentary Jan302012_02D7101.pdf Jan302012_03D7101.pdf APPEAL DISMISSED AS MOOT [L1-A] 2nd MOTION DISMISSED [L1-A] DISCUSSION: The nonimmigrant visa petition was denied by the director, Vermont Service Center. The Administrative Appeals Office (AAO) dismissed the subsequently filed appeal and affirmed the director's decision to deny the petition. The filed a motion to reopen and/or motion to reconsider with the AAO which the AAO also dismissed. The matter is now before the AAO on a second motion to reopen and reconsider. The AAO will dismiss the motion. The petitioner, a jewelry business, filed this nonimmigrant visa petition on September 12, 2007 seeking to employ the beneficiary as an L-l A nonimmigrant intracompany transferee pursuant to Section 101(a)(15)(L) of the Immigration and Nationality Act (the Act), 8 U.S.C. § I 101 (a)(15)(L). The petitioner has employed the beneficiary as its president since November 2005 and now seeks to extend his L-l A status for two additional years. The director denied the petition on December 21, 2007, concluding that the petitioner did not establish that the beneficiary will be employed in the United States in a primarily managerial or
  • 11. To obtain a pdf version of this document, e-mail: joseph.whalen774@gmail.com Page 11 AAO Non-Precedent L-Intracompany Transferee Decisions of 2012 Link to Decision Result, Excerpts, or Commentary Jan302012_04D7101.pdf executive capacity. The AAO summarily dismissed the petitioner's subsequent appeal in a decision dated January 30, 2009, pursuant to the regulation at 8 C.F.R. § 103.3(a)(1)(v). In dismissing the appeal, the AAO noted that the petitioner failed to submit a brief or additional evidence to the AAO in support of the appeal within 30 days, and had not otherwise identified specifically an erroneous conclusion of law or statement of fact on the part of the director.” APPEAL DISMISSED [L1-A] ….The petitioner, a New York corporation, states that it operates a perfume and cosmetics business FN1 It claims to be a branch office of Rozni Impex Pvt. Ltd, located in Mumbai, India. The petitioner has employed the beneficiary in L-1A status since November 2004 and now seeks to extend his status so that he may continue to serve in the position of managing director. The director denied the petition, concluding that the petitioner failed to establish that the beneficiary will be employed in the United States in a primarily managerial or executive capacity. _______________ FN1 The record reflects that there are two
  • 12. To obtain a pdf version of this document, e-mail: joseph.whalen774@gmail.com Page 12 AAO Non-Precedent L-Intracompany Transferee Decisions of 2012 Link to Decision Result, Excerpts, or Commentary Jan302012_06D7101.pdf United States entities with the same name as the petitioning entity. One entity was established in 2002 in New York and a second was established in 2006 in New Jersey. The petitioner submitted two sets of 2008 tax returns with different tax identification numbers and incorporation documents for each entity. The petitioner used the tax identification number for the New York corporation on the Form 1-129. SUMMARILY DISMISSED [L1-B] The petitioner filed this nonimmigrant petition seeking to classify the beneficiary as an L-1B nonimmigrant intracompany transferee with specialized knowledge pursuant to section 101(a)(15)(L) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1101(a)(15)(L). The petitioner, a foreign company qualified to do business in California, is a software services company. ….. * * * * * The director denied the petition on January 26, 2010 concluding that the petitioner failed to establish that sufficient physical premises were secured to house the new operation. Specifically, the director found that the submitted office services agreement was deficient in that it did not secure physical premises for the beneficiary for the 36 month requested period and the agreement only provided space for one employee.
  • 13. To obtain a pdf version of this document, e-mail: joseph.whalen774@gmail.com Page 13 AAO Non-Precedent L-Intracompany Transferee Decisions of 2012 Link to Decision Result, Excerpts, or Commentary Feb012012_01D7101.pdf The petitioner subsequently filed an appeal. The director declined to treat the appeal as a motion and forwarded the appeal to the AAO for review. On appeal, the petitioner requests reconsideration of the denial based on "changed facts." * * * * * As a preliminary matter, the petitioner filed the nonimmigrant petition on March 11, 2009. The new Office Services Agreement was not entered into until November 19, 2009, after the date of filing. 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). Furthermore, inasmuch as the petitioner has not identified specifically an erroneous conclusion of law or statement of fact as a basis for the appeal, the appeal must be summarily dismissed. 8 C.F.R. § 103.3(a)(1)(v). APPEAL SUSTAINED [L1-A] NEW OFFICE ….The petitioner, a publicly-traded corporation established in Nevada, states that it intends to provide products and services in the technology and energy
  • 14. To obtain a pdf version of this document, e-mail: joseph.whalen774@gmail.com Page 14 AAO Non-Precedent L-Intracompany Transferee Decisions of 2012 Link to Decision Result, Excerpts, or Commentary Feb022012_01D7101.pdf sectors…… * * * * * The director denied the petition based on two independent and alternative grounds, concluding that the petitioner failed to establish: (1) that the U.S. company secured sufficient physical premises to house the new office; and (2) that the U.S. and foreign entities have a qualifying relationship. APPEAL DISMISSED [L1-A] “The petitioner, an Illinois corporation established in March 2009, states that it is a wholly-owned subsidiary of [REDACTED] located in China. It indicates that it intends to engage in the wholesale and retail sale of caps and hats. The petitioner seeks to employ the beneficiary as the president of its new office in the United States for a period of three years.” Note: A new office petition is limited to approval for one-year only. “The director denied the petition based on two independent and alternative grounds, concluding that the petitioner failed to establish: (1) that the United States and foreign companies have a qualifying relationship; and (2) that the beneficiary was employed by the foreign entity in a primarily managerial or executive capacity.”
  • 15. To obtain a pdf version of this document, e-mail: joseph.whalen774@gmail.com Page 15 AAO Non-Precedent L-Intracompany Transferee Decisions of 2012 Link to Decision Result, Excerpts, or Commentary Feb032012_01D7101.pdf This decision contains deep discussion of the two independent reasons for denial. APPEAL DISMISSED [L1-A] ….The petitioner, a Delaware corporation, states that it is an Internet publisher and a subsidiary of Times Internet Limited, located in India. The beneficiary was previously granted L-1A status for a one- year period in order to open a new office in the United States and the petitioner now seeks to extend his status in the position of executive manager for three additional years. The director denied the petition, concluding that the petitioner failed to establish that the beneficiary would be employed in the United States in a primarily managerial or executive capacity. The petitioner subsequently filed a motion to reconsider. The director granted the motion but affirmed his decision to deny the petition. The petitioner subsequently filed an appeal. The director declined to treat the appeal as a motion and forwarded the appeal to the AAO. On appeal, counsel cites unpublished AAO decisions in support of his assertion that the beneficiary is primarily performing executive or managerial duties despite the small size of the U.S. company. Counsel further relies on a 2004 USCIS
  • 16. To obtain a pdf version of this document, e-mail: joseph.whalen774@gmail.com Page 16 AAO Non-Precedent L-Intracompany Transferee Decisions of 2012 Link to Decision Result, Excerpts, or Commentary memorandum to support his assertion that the director should have given deference to the prior approval the L-1A petition filed on behalf of the beneficiary by the same employer. See Memorandum of William R. Yates, Assoc. Dir. Operations, "The Significance of a Prior CIS Approval of a Nonimmigrant Petition in the Context of a Subsequent Determination Regarding Eligibility for Extension of Petition Validity," (April 23, 2004). * * * * * Finally, the AAO acknowledges counsel's argument that the instant matter is a request for an extension of the beneficiary's previously approved L-IA classification petition under the policy outlined in the Yates memorandum. Counsel's reliance on the Yates memorandum and contention that deference should be given to the prior approval are not persuasive. First and foremost, the memorandum specifically states that it does not apply to L-l new office extension petitions like the case at hand. Memo at p.2, fn. 1. In the prior petition, the petitioner indicated that it was a new office, and the petition was adjudicated under the relevant regulations for new offices. See 8 C.F.R. § 214.2(l)(3)(v). In the present matter, the petitioner is no longer a new office, and the regulation at 8 C.F.R. § 214.2(l)(3)(v) does not apply. As the petitioner is requesting a first extension after the opening of a new office, the petitioner
  • 17. To obtain a pdf version of this document, e-mail: joseph.whalen774@gmail.com Page 17 AAO Non-Precedent L-Intracompany Transferee Decisions of 2012 Link to Decision Result, Excerpts, or Commentary Feb072012_01D7101.pdf must now satisfy its burden under the regulation at 8 C.F.R. § 214.2(l)(14)(ii) in order to establish eligibility. Accordingly, the fact that the petitioner is no longer a new office, and is now requesting a first extension after opening a new office, represents a changed circumstance. In fact, the director had a duty to carefully examine the present petition and render a full adjudication, as the petitioner has new regulatory requirements in the present proceeding that did not apply to the prior petition. See 8 C.F.R. § 214.2(l) (14)(ii). The Yates memorandum does not apply to new office extensions. The director's close analysis and detailed request for evidence were appropriate in light of the referenced memorandum and the petitioner's evidentiary burden. APPEAL DISMISSED [L1-A] …The petitioner, a New Jersey corporation established in March 2007, states that it is engaged in the import, export and distribution of consumer products. It claims to be a subsidiary of Summit Co., Ltd., located in Seoul, South Korea. The petitioner currently employs the beneficiary as its executive director and seeks to extend his L-1A status for two additional years.FN1 ____________ FN1 The beneficiary was approved for L-lA classification for the period October 31, 2008 through October 30, 2009. The
  • 18. To obtain a pdf version of this document, e-mail: joseph.whalen774@gmail.com Page 18 AAO Non-Precedent L-Intracompany Transferee Decisions of 2012 Link to Decision Result, Excerpts, or Commentary Feb072012_02D7101.pdf record shows that the U.S. company was established in March 2007 and achieved sales of $121,045 during that calendar year. It appears that the petitioner was treated as a "new office" as defined at 8 C.F.R. § 214.2(l)(1)(ii)(F) at the time the beneficiary‟s previous L-1A petition was adjudicated. Therefore, the AAO will adjudicate the instant petition as a request for an extension of a petition involving a new office pursuant to 8 C.F.R. § 214.2(l)(14)(ii). * * * * * The director denied the petition, concluding that the petitioner failed to establish that the beneficiary would be employed in the United States in a primarily managerial or executive capacity. APPEAL DISMISSED [L1-A] …The petitioner, an Illinois corporation, provides training and business consulting services for aspiring entrepreneurs in Central and Eastern Europe. It claims to be an affiliate of the beneficiary's foreign employer located in Bulgaria. The petitioner seeks to employ the beneficiary in the position of Vice President, International Small & Medium enterprises (SME) Development, for a period of three years. The director denied the petition
  • 19. To obtain a pdf version of this document, e-mail: joseph.whalen774@gmail.com Page 19 AAO Non-Precedent L-Intracompany Transferee Decisions of 2012 Link to Decision Result, Excerpts, or Commentary Feb072012_03D7101.pdf Feb072012_04D7101.pdf concluding that the petitioner failed to establish that the beneficiary will be employed in the United States in a primarily managerial or executive capacity. APPEAL SUSTAINED [L1A&B] ….The petitioner operates a business information technology consulting firm and claims that it has a qualifying relationship with the beneficiary's foreign employer in Mumbai, India. The petitioner states that the beneficiary was first admitted to the United States in L-1B status on August 20, 2004. The beneficiary‟s L-1B status was due to expire on October 2, 2009. The petitioner now seeks an amendment of the beneficiary‟s stay from L-1B to L-1A status for the remaining period of September 4, 2009 through October 25, 2009. The petitioner seeks to employ the beneficiary in the position of Project Manager. MOTION DISMISSED[L1-A] DISCUSSION: The Director, Vermont Service Center, denied the petition for a nonimmigrant visa. The petitioner has previously filed a total of three appeals and three motions with the Administrative Appeals Office (AAO). Most recently, the AAO dismissed the
  • 20. To obtain a pdf version of this document, e-mail: joseph.whalen774@gmail.com Page 20 AAO Non-Precedent L-Intracompany Transferee Decisions of 2012 Link to Decision Result, Excerpts, or Commentary Feb082012_01D7101.pdf petitioner's motion to reopen and reconsider in a decision dated October 19, 2009. The matter is once again before the AAO on a motion to reopen and reconsider. The petitioner seeks to extend the employment of the beneficiary as its Vice president as an L-1A nonimmigrant intracompany transferee pursuant to § 101 (a)(15)(L) of the Immigration and Nationality Act, 8 U.S.C. 1101(a)(15)(L). The petitioner, a corporation organized under the laws of the State of New Jersey, claims to be engaged in the wholesale of general merchandise and states that it is a subsidiary of [REDACTED]. The beneficiary was initially granted a one- year period of stay in the United States in L-1A status in order to open a new office, and the petitioner seeks to extend the beneficiary's stay. APPEAL DISMISSED [L1-A] ….The petitioner, a California corporation established in October 2006, states that it is an information technology business. The petitioner claims to be a subsidiary of [REDACTED] located in Istanbul, Turkey. The petitioner seeks to employ the beneficiary as the chief operations officer of its office in the United States. The director denied the petition, concluding that the petitioner failed to
  • 21. To obtain a pdf version of this document, e-mail: joseph.whalen774@gmail.com Page 21 AAO Non-Precedent L-Intracompany Transferee Decisions of 2012 Link to Decision Result, Excerpts, or Commentary Feb082012_02D7101.pdf establish that the beneficiary has been and will be employed in a position that is primarily executive or managerial in nature. APPEAL SUSTAINED [L1-A] …The petitioner was formed as a limited partnership under the laws of the State of Maryland in 2004, and is a business information technology consulting firm. It claims to be an affiliate of Tata Consultancy Services Limited in Mumbai, India. The petitioner is seeking L-IA status for the beneficiary as Business Development Manager for an additional period of two years. The director denied the petition, concluding that the petitioner failed to establish that the beneficiary would be employed in the United States in a primarily managerial or executive capacity. * * * * * III. Conclusion Upon review, the petitioner's assertions are persuasive. The AAO finds sufficient evidence to establish that the beneficiary will be employed in a primarily managerial capacity. The director's determination appears to be based in part on the director's pre-conceived impression of what duties are typically performed by project managers or
  • 22. To obtain a pdf version of this document, e-mail: joseph.whalen774@gmail.com Page 22 AAO Non-Precedent L-Intracompany Transferee Decisions of 2012 Link to Decision Result, Excerpts, or Commentary program managers for IT workers rather than on the evidence submitted by the petitioner. The director should not hold a petitioner to his undefined and unsupported view of the standard duties of an occupation in making a determination as to whether the beneficiary will be employed in a primarily managerial or executive capacity. The director should instead focus on applying the statute and regulations to the facts presented by the record of proceeding. The evidence submitted establishes that the beneficiary supervises and controls the work of professional employees and possesses authority to recommend personnel actions for employees under his supervision. See sections 101(a)(44) (A)(ii) and (iii) of the Act. Furthermore, the AAO does not agree with the director that "given the number of employees the petitioner employs, the beneficiary cannot possibly function at a high level within the organization when the beneficiary only controls sixteen employees." The record indicates that the client account for which the beneficiary is responsible generates significant revenue, and the beneficiary manages four major projects assigned to the account. Sec. 101(a)(44)(C) of the Act. The petitioner established a reasonable need for a managerial level employee to manage projects delivered to this account. In addition, the beneficiary does not directly
  • 23. To obtain a pdf version of this document, e-mail: joseph.whalen774@gmail.com Page 23 AAO Non-Precedent L-Intracompany Transferee Decisions of 2012 Link to Decision Result, Excerpts, or Commentary oversee such projects, but rather oversees subordinate project managers, who, in turn, supervise the technical resources. Finally, the AAO is satisfied that the beneficiary exercises discretion over the day-to-day operations of the projects under his responsibility, as required by section 101(a)(44)(A)(iv) of the Act. While the beneficiary will undoubtedly be required to apply his technical expertise in carrying out his job duties and perform some administrative tasks, the petitioner has established by a preponderance of the evidence that the majority of the day-to- day non-managerial tasks required to produce the products and provide services for the client are carried out by the beneficiary's subordinate project managers and technical staff. The petitioner need only establish that the beneficiary devotes more than half of his time to managerial duties. The petitioner has met that burden. 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 sustained that burden. Accordingly, the director's decision dated December 15, 2009 is withdrawn. ORDER: The appeal is sustained. APPEAL SUSTAINED [L-1A]
  • 24. To obtain a pdf version of this document, e-mail: joseph.whalen774@gmail.com Page 24 AAO Non-Precedent L-Intracompany Transferee Decisions of 2012 Link to Decision Result, Excerpts, or Commentary Feb082012_03D7101.pdf Feb082012_04D7101.pdf Feb092012_01D7101.pdf The petitioner is a Delaware company engaged in dredging services. The petitioner states that it is a wholly-owned subsidiary of Royal Boskalis Westminster NY, located in The Netherlands. Accordingly, the United States entity petitioned United States Citizenship and Immigration Services (US CIS) to classify the beneficiary as a nonimmigrant intracompany transferee (L-1 A) pursuant to section 101(a)(15)(L) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1101(a)(15)(L). The petitioner seeks to extend the beneficiary's stay in order to continue to fill the position of project development manager for a two-year period. The director denied the petition on January 6, 2010, concluding that the record contains insufficient evidence to demonstrate that the beneficiary will be employed in a primarily executive or managerial capacity by the foreign company. APPEAL REJECTED, CASE REMANDED Untimely appeal returned to the Service Center for consideration as a Motion. MOTION DISMISSED [L1-A] APPEAL DISMISSED [L1-A]
  • 25. To obtain a pdf version of this document, e-mail: joseph.whalen774@gmail.com Page 25 AAO Non-Precedent L-Intracompany Transferee Decisions of 2012 Link to Decision Result, Excerpts, or Commentary Feb132012_01D7101.pdf Feb132012_02D7101.pdf The petitioner, a California corporation established in 2009, intends to operate a computer parts wholesale business. The petitioner seeks to employ the beneficiary as the manager of its new office in the United States for a period of three years. The director denied the petition based on two independent and alternative grounds, concluding that the petitioner failed to establish: (1) that the petitioner has a qualifying relationship with the beneficiary's foreign employer; and (2) that the petitioner has secured sufficient physical premises to house the new office. APPEAL DISMISSED [L1-A] The petitioner, a California corporation, claims that it is sale & distribution of value-added special applied materials products, such as optical data storage, solar cell, etc." The petitioner states that it is a subsidiary 0f [REDACTED] located in Taiwan. Accordingly, the United States entity petitioned United States Citizenship and Immigration Services (USCIS) to classify the beneficiary as a nonimmigrant intracompany transferee (L-IA) pursuant to section 101(a)(15)(L) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1101(a)(15)(L). The petitioner seeks to employ the beneficiary to fill the position of regional sales manager for a three-year period. (NOTE:
  • 26. To obtain a pdf version of this document, e-mail: joseph.whalen774@gmail.com Page 26 AAO Non-Precedent L-Intracompany Transferee Decisions of 2012 Link to Decision Result, Excerpts, or Commentary Feb132012_03D7101.pdf Feb132012_04D7101.pdf Feb132012_05D7101.pdf As a “new office” an approval would have been limited to one-year at this point.) The director denied the petition on December 28, 2009, concluding that the record contains insufficient evidence to demonstrate that the beneficiary will be employed in a primarily executive or managerial capacity by the U.S. company. The director noted that it did not appear that the beneficiary supervises a staff of professional, managerial, or supervisory personnel who will relieve the beneficiary from performing non-qualifying duties, and thus the beneficiary will be primarily involved in performing the day-to-day services essential to running a business. APPEAL DISMISSED AS MOOT [L1-A] Beneficiary is now a conditional LPR. APPEAL DISMISSED AS MOOT [L1-A] Beneficiary is now a conditional LPR. APPEAL DISMISSED AS MOOT [L1-A] Beneficiary is now an EB LPR. APPEAL DISMISSED [L1-A]
  • 27. To obtain a pdf version of this document, e-mail: joseph.whalen774@gmail.com Page 27 AAO Non-Precedent L-Intracompany Transferee Decisions of 2012 Link to Decision Result, Excerpts, or Commentary Feb142012_01D7101.pdf Feb142012_02D7101.pdf Working 25 hrs/week at a motel was not found to be primarily managerial or executive in nature. APPEAL WITHDRAWN & ADMINISTRATIVE FINDING OF WILFILL MATERIAL MISREPRESENTATION [L1-A] A Texas gas station w/convenience store petitioned for an executive. The director denied the petition, concluding that the petitioner failed to establish that the beneficiary would be employed in a primarily managerial or executive capacity, or that the U.S. entity would support a managerial or executive position within one year of commencing operations in the United States. The petitioner subsequently filed an appeal. The director declined to treat the appeal as a motion and forwarded the appeal to the AAO for review. On appeal, counsel for the petitioner asserted that the director placed undue emphasis on the size and nature of the petitioner's retail business in determining whether the beneficiary would be employed in a managerial or executive capacity. On January 5, 2012, in accordance with the regulation at 8 C.F.R. § 103.2(b)
  • 28. To obtain a pdf version of this document, e-mail: joseph.whalen774@gmail.com Page 28 AAO Non-Precedent L-Intracompany Transferee Decisions of 2012 Link to Decision Result, Excerpts, or Commentary (16)(i), this office issued a notice of derogatory information and intent to deny, advising the petitioner that the evidence in record, considered with other information available in public records, raised serious questions regarding the credibility of the evidence submitted to establish the petitioner's ownership of its claimed U.S. subsidiary. The AAO afforded the petitioner 30 days to submit documentation and explanation to address the significant discrepancies noted. On January 26, 2012, counsel requested that the appeal be withdrawn. A withdrawal may not be retracted and may not be refused. 8 C.F.R. § 103.2(b)(6); Matter of Cintron, 16 I&N Dec. 9 (BIA 1976). The appeal will be dismissed based on its withdrawal by petitioner's counsel. Although the appeal will be dismissed, the remaining issues that must be addressed in this matter are: (1) whether the petitioner sought to procure an immigration benefit through willful misrepresentation of a material fact; and, if so, (2) whether the withdrawal of the appeal constitutes a timely recantation of the misrepresentation. * * * * * As a preliminary mater, the AAO will address whether the evidence submitted with respect to the petitioner's claimed ownership of the U.S. company, rises to the level of a misrepresentation. A
  • 29. To obtain a pdf version of this document, e-mail: joseph.whalen774@gmail.com Page 29 AAO Non-Precedent L-Intracompany Transferee Decisions of 2012 Link to Decision Result, Excerpts, or Commentary Feb212012_01D7101.pdf misrepresentation is an assertion or manifestation that is not in accord with the true facts.FN1 ___________ FN1 The terms "fraud" and "misrepresentation" are not interchangeable. Unlike a finding of fraud, a finding of material misrepresentation does not require an intent to deceive or that the officer believes and acts upon the false representation. See Matter of Kai Hing Hui, 15 I&N Dec. 288 (BIA 1975). A finding of fraud requires a determination that the alien made a false representation of a material fact with knowledge of its falsity and with the intent to deceive an immigration officer. Furthermore, the false representation must have been believed and acted upon by the officer. See Matter of G-G-, 7 I&N Dec. 161 (BIA 1956). APPEAL DISMISSED [L1-A] …. The petitioner has employed the beneficiary as its president in L-1 A status since January 2007 and now seeks to extend his status for two additional years. The director denied the petition, concluding that the petitioner failed to establish that the beneficiary would be employed in the United States in a primarily managerial or executive capacity.
  • 30. To obtain a pdf version of this document, e-mail: joseph.whalen774@gmail.com Page 30 AAO Non-Precedent L-Intracompany Transferee Decisions of 2012 Link to Decision Result, Excerpts, or Commentary Feb212012_02D7101.pdf Feb212012_03D7101.pdf Feb212012_04D7101.pdf Feb232012_01D7101.pdf APPEAL DISMISSED AS MOOT [L1-B] Beneficiary is now an LPR. APPEAL DISMISSED AS MOOT [L1-A] Beneficiary is now an LPR. _____________________________ APPEAL DISMISSED AS MOOT [L1-A] Beneficiary is now an LPR. APPEAL DISMISSED [L1-A] …. The petitioner, a Texas corporation established in 2008, states that it intends to engage in the retail sale and wholesale of cellular phones and accessories. It claims to be a subsidiary of Chemitex Industries, Ltd. and Ittehad Chemicals Ltd., both located in Pakistan. The petitioner seeks to employ the beneficiary as the operation manager of its new office in the United States for a period of two years. The director denied the petition concluding that the petitioner failed to establish that the beneficiary would be employed in the United States in a primarily managerial or executive status within one year of approval of the petition.
  • 31. To obtain a pdf version of this document, e-mail: joseph.whalen774@gmail.com Page 31 AAO Non-Precedent L-Intracompany Transferee Decisions of 2012 Link to Decision Result, Excerpts, or Commentary Mar022012_01D7101.pdf Mar022012_02D7101.pdf Relates to #4 of the same date. Mar022012_03D7101.pdf APPEAL DISMISSED AS MOOT [L1-A] Beneficiary is now an LPR. APPEAL DISMISSED [L1-A] Following revocation due to untrue statements as to the “qualifying relationship” between U.S. and foreign employers. They don’t qualify. APPEAL DISMISSED [L1-A] ….. The petitioner, a Tennessee corporation established in November 2009, states that it intends to operate a grocery store. It claims to be a subsidiary of [REDACTED] located in India. The petitioner seeks to employ the beneficiary as the chief executive officer of its new office in the United States for a period of two years. The director denied the petition, concluding that the petitioner failed to establish: (1) 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; and (2) that the petitioner has secured sufficient physical premises to house the new office.
  • 32. To obtain a pdf version of this document, e-mail: joseph.whalen774@gmail.com Page 32 AAO Non-Precedent L-Intracompany Transferee Decisions of 2012 Link to Decision Result, Excerpts, or Commentary Mar022012_04D7101.pdf Relates to #2 of the same date. Mar022012_05D7101.pdf APPEAL DISMISSED [L1-A] Following revocation due to untrue statements as to the “qualifying relationship” between U.S. and foreign employers. They don’t qualify. SUMMARILY DISMISSED [L1-A] The petitioner, a New York corporation, states that it is engaged in the trade of new and reconditioned machinery. The beneficiary was previously granted one year in L-1A status in order to open the new U.S. office. The petitioner now seeks to extend the beneficiary's status so that he may continue to serve as the U.S. company's general manager and chief executive officer. The director denied the petition on February 11, 2010 concluding that the petitioner failed to establish: (1) that it was doing business as defined in the regulations for the previous year; and (2) that the new office has grown to the point where it can support a qualifying managerial or executive position. Alleged no factual errors, misapplication of any law, and offered no new evidence.
  • 33. To obtain a pdf version of this document, e-mail: joseph.whalen774@gmail.com Page 33 AAO Non-Precedent L-Intracompany Transferee Decisions of 2012 Link to Decision Result, Excerpts, or Commentary Mar052012_01D7101.pdf Mar072012_01D7101.pdf APPEAL DISMISSED [L1-A] …. The beneficiary was previously granted L-1A status for a period of two years, from December 2006 to December 2008, and the petitioner now seeks to extend his status so that he may continue to serve in the position of general manager. The director initially approved the petition for a two-year period commencing on December 28, 2008. The director then revoked the approval of the petition on November 16, 2009, concluding that the petitioner failed to establish that the beneficiary has been and will be employed in the United States in a primarily managerial or executive capacity. APPEAL DISMISSED [L1-A] …. The petitioner, a New York corporation established in June 2008, states that it manufactures and imports surgical and dental instruments. The petitioner claims to have a qualifying relationship with B.A.K. Industry located in Pakistan. The petitioner seeks to employ the beneficiary as the general manager of its new office in the United States. The director denied the petition, concluding that the petitioner failed to
  • 34. To obtain a pdf version of this document, e-mail: joseph.whalen774@gmail.com Page 34 AAO Non-Precedent L-Intracompany Transferee Decisions of 2012 Link to Decision Result, Excerpts, or Commentary Mar072012_02D7101.pdf Mar072012_03D7101.pdf establish that the beneficiary will be employed in a bona fide manager or executive position within one year of the beginning of operations for the United States business entity. APPEAL DISMISSED [L1-A] .. The petitioner, a California corporation, states that it is a retailer and wholesaler. It claims to be an affiliate of the beneficiary‟s foreign employer, [REDACTED] Pvt. Ltd., located in India. The petitioner seeks to employ the beneficiary in the position of project manager for a period of three years. The director denied the petition, concluding that the petitioner failed to establish that the beneficiary would be employed in the United States in a primarily managerial or executive capacity. APPEAL DISMISSED [L1-A] The petitioner, a Texas corporation, states that it is engaged in retail sales and services. The petitioner states that it is a branch office 0f [REDACTED] located in India. The United States entity petitioned United States Citizenship and immigration Services (USCIS) to classify the beneficiary as a nonimmigrant
  • 35. To obtain a pdf version of this document, e-mail: joseph.whalen774@gmail.com Page 35 AAO Non-Precedent L-Intracompany Transferee Decisions of 2012 Link to Decision Result, Excerpts, or Commentary Mar072012_04D7101.pdf Mar142012_01D7101.pdf intracompany transferee (L-1A) pursuant to section 101(a)(15)(L) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1101(a)(15)(L). The petitioner was initially granted a one-year period of stay to open a new office and was subsequently granted an extension of L-1A status for two years. The petitioner now seeks to extend the beneficiary's stay in order to continue to fill the position of Executive Director for a two-year period. On April 8, 2009, the director revoked the petition concluding that the petitioner did not submit sufficient evidence in rebuttal to the United States Citizenship and Immigration Services' ("USCIS") Notice of Intent to Revoke (''NOIR'') and has not overcome the grounds for revocation. APPEAL DISMISSED [L1-A] This Decision contains in-depth discussion on what is and what is NOT a “new office”. APPEAL DISMISSED [L1-A] …The petitioner, a California limited liability company established in October 2009, states that it intends to in promotional consulting, on-air product demonstrations, and infomercials. It claims to be an affiliate of [REDACTED] located in Toronto, Canada. The
  • 36. To obtain a pdf version of this document, e-mail: joseph.whalen774@gmail.com Page 36 AAO Non-Precedent L-Intracompany Transferee Decisions of 2012 Link to Decision Result, Excerpts, or Commentary petitioner seeks to employ the beneficiary as the president of its new ill the United States for a period of one year. The director denied the petition, concluding that the petitioner failed to establish: (1) that the petitioner has secured sufficient physical premises to house the new office; (2) that the beneficiary would be employed in the United States in a primarily managerial or executive capacity within one year of approval of the petition; or (3) that the beneficiary has been employed by the foreign entity in a primarily managerial or executive capacity. The petitioner subsequently filed an appeal. The director declined to treat the appeal as a motion and forwarded the appeal to the AAO for review. On appeal, counsel asserts that the beneficiary's proffered position is in an executive capacity and that the nature of the petitioner's and foreign entity's business requires the use of independent contractors on an "as-needed" basis. Counsel further states that the beneficiary is "in the process of securing premises for his business as it is newly established and in the process of expanding." * * * * * The fact that the owner(s) and only employees of the foreign entity have been residing and intend to continue residing in the United States raises the question of whether the foreign affiliate is still doing
  • 37. To obtain a pdf version of this document, e-mail: joseph.whalen774@gmail.com Page 37 AAO Non-Precedent L-Intracompany Transferee Decisions of 2012 Link to Decision Result, Excerpts, or Commentary Mar142012_02D7101.pdf business so that a qualifying relationship exists pursuant to 8 C.F.R. § 214.2(l) (1)(ii)(G). For this additional reason, the petition cannot be approved. ________________________ Sells a toy at a mall kiosk and wants to make a two-minute infomercial for it. SUMMARILY DISMISSED [L1-A] …The petitioner, a Hawaii corporation, operates a wedding coordination business. It claims to be an affiliate of [REDACTED]. The petitioner seeks to employ the beneficiary in the position of Coordinating Manager for a period of three years. The director initially approved the petition on January 9, 2009. On February 4, 2010, the director issued a notice of intent to revoke the approval pursuant to the regulation at 8 C.F.R. § 214.2(1)(9) (iii)(A)(5), based on a finding that the approval of the petition involved gross error. The director revoked the approval on April 1, 2010, after reviewing the petitioner's response to the notice of intent to revoke. The director determined that the petitioner failed to establish that the beneficiary would be employed in the United States in a primarily managerial or executive capacity. The petitioner subsequently filed an appeal. The director declined to treat the appeal as a motion and forwarded the
  • 38. To obtain a pdf version of this document, e-mail: joseph.whalen774@gmail.com Page 38 AAO Non-Precedent L-Intracompany Transferee Decisions of 2012 Link to Decision Result, Excerpts, or Commentary appeal to the AAO for review. The appeal consists of a Form I-290B, Notice of Appeal or Motion signed by [REDACTED] in his capacity as president, who is identified elsewhere in the record as holding the position of “President/Vice President/Treasurer." Where asked to "provide a statement explaining any erroneous conclusion of law or fact in the decision being appealed, the petitioner indicates: Fact: After moving to Hawaii I was promoted to Vice President of the company. Fact: I am performing the duties of a Vice President for [the U.S. company]. Fact: I have set our monthly goal at 30 weddings per month. I have instituted several new programs to move the company toward this goal by introducing beach weddings, photo shoot opportunities, vow renewals and wedding receptions .... The statement goes on to provide four additional facts regarding the vice president's duties. The petitioner indicated that no supplemental brief or additional evidence would be submitted to the AAO. To establish eligibility for the L-l nonimmigrant visa classification, the petitioner must meet the criteria outlined in section 101(a)(15)(L) of the Act. Specifically, a qualifying organization
  • 39. To obtain a pdf version of this document, e-mail: joseph.whalen774@gmail.com Page 39 AAO Non-Precedent L-Intracompany Transferee Decisions of 2012 Link to Decision Result, Excerpts, or Commentary 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. * * * * * Upon review, the AAO concurs with the director's decision and affirms the revocation of the petition approval. On appeal, the petitioner has not identified an erroneous conclusion of law or statement of fact on the part of the director as a basis for the appeal, or even raised any specific objection to the director's findings. Rather, the petitioner describes the duties performed by the vice president of the company. [REDACTED], who is identified in the record as the company's vice president and who signed the Form 1-290B on behalf of the petitioner, appears to be making the statement in the first person. As the instant petition was filed to classify a different individual for a different position (Coordinating Manager), the statements made on Form I-290B appear to be wholly irrelevant to the stated grounds for denial.
  • 40. To obtain a pdf version of this document, e-mail: joseph.whalen774@gmail.com Page 40 AAO Non-Precedent L-Intracompany Transferee Decisions of 2012 Link to Decision Result, Excerpts, or Commentary Even if the AAO assumed, in the alternative, that the first-person statement on the Form 1-290B should be attributed to the beneficiary, we note that the petitioner has consistently indicated that the beneficiary in this matter was transferred to the United States to serve in the position of "Coordinating Manager" and continued to hold this position as of March 2010 when the petitioner responded to the notice of intent to revoke. If the beneficiary has been promoted, then the petitioner had ample opportunity to provide her new job title and job duties prior to the revocation of the petition approval. If the petitioner is now claiming that the beneficiary is employed as its vice president, the AAO notes that on appeal, a petitioner cannot offer a new position to the beneficiary, or materially change a position's title, its level of authority within the organizational hierarchy, or the associated job responsibilities. The petitioner must establish that the position offered to the beneficiary when the petition was filed merits classification as a managerial or executive position. Matter of Michelin Tire Corp., 17 I&N Dec. 248, 249 (Reg. Comm'r 1978). A petitioner may not make material changes to a petition in an effort to make a deficient petition conform to USCIS requirements. See Matter of Izummi, 22 I&N Dec. 169, 176 (Assoc. Comm'r 1998).
  • 41. To obtain a pdf version of this document, e-mail: joseph.whalen774@gmail.com Page 41 AAO Non-Precedent L-Intracompany Transferee Decisions of 2012 Link to Decision Result, Excerpts, or Commentary Mar152012_01D7101.pdf Mar152012_02D7101.pdf APPEAL DISMISSED [L1-A] The director initially approved the petition and granted the requested status on February 11, 2009. On February 5, 2010, the director issued a notice of intent to revoke the approval, pursuant to 8 C.F.R. § 214.2(l)(9)(iii)(A)(5), based on a finding that the approval of the petition involved gross error. The director instructed the petitioner to submit additional evidence or arguments in rebuttal of the issues raised in the notice of intent to revoke. The petitioner submitted rebuttal evidence on March 5, 2010. The director revoked the approval of the petition on March 15, 2010, concluding that the petitioner failed to establish that the United States and foreign entities are qualifying organizations. APPEAL DISMISSED [L1-A] ….The petitioner, a New Jersey corporation established in November 2009, states that it intends to operate a grocery store. It claims to be a subsidiary of [REDACTED] located in India. The petitioner seeks to employ the beneficiary as the vice president of its new office in the United States for a period of 35 months.
  • 42. To obtain a pdf version of this document, e-mail: joseph.whalen774@gmail.com Page 42 AAO Non-Precedent L-Intracompany Transferee Decisions of 2012 Link to Decision Result, Excerpts, or Commentary Mar192012_01D7101.pdf The director denied the petition, concluding that the petitioner failed to establish: (1) that the petitioner has secured sufficient physical premises to house the new office; and (2) that the U.S. company would support a qualifying managerial or executive position within one year. APPEAL REJECTED AS IMPROPERLY FILED [L1-A] DISCUSSION: The Director, Vermont Service Center, denied the nonimmigrant visa petition, and the Administrative Appeals Office (AAO) summarily dismissed the petitioner's appeal. Subsequently, the AAO dismissed the petitioner's combined motion to reopen and reconsider. The matter is now before the AAO again on appeal. The AAO will reject the appeal as improperly filed. * * * * * On June 7, 2011, the petitioner filed a second appeal. The appeal must be rejected. The AAO does not exercise appellate jurisdiction over AAO decisions. The AAO exercises appellate jurisdiction over the matters described at 8 C.F.R. § 103.1(f)(3)(iii) (as in effect on February 28, 2003). See DHS Delegation Number 0150.1; 8 C.F.R. § 103.3(a)(iv). Accordingly, the appeal is not properly before the AAO.
  • 43. To obtain a pdf version of this document, e-mail: joseph.whalen774@gmail.com Page 43 AAO Non-Precedent L-Intracompany Transferee Decisions of 2012 Link to Decision Result, Excerpts, or Commentary Mar202012_01D7101.pdf APPEAL DISMISSED [L1-A] The petitioner filed this nonimmigrant petition seeking to extend the Beneficiary's employment as a nonimmigrant intracompany transferee pursuant to section 101(a)(15)(L) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1101 (a)(15)(L). The petitioner, a Texas limited liability company, states that it operates an oilfield equipment supply business. The petitioner claims to be a subsidiary of [REDACTED] located in Netherlands. The beneficiary was previously granted L-IA classification for a period of one year in order to open a new office in the United States, and the petitioner now seeks to extend his status so that he may continue to serve as the U.S. company's general manager. The director denied the petition, concluding that the petitioner failed to establish that the beneficiary will be employed in the United States in a primarily managerial or executive capacity. * * * * * As a preliminary matter, we acknowledge the petitioner's claims that it may take several years to move beyond the start-up or development phase of operations. The AAO also acknowledges that a downturn in the economy over the initial year of operation may have postponed original start-up timelines. However, we
  • 44. To obtain a pdf version of this document, e-mail: joseph.whalen774@gmail.com Page 44 AAO Non-Precedent L-Intracompany Transferee Decisions of 2012 Link to Decision Result, Excerpts, or Commentary Mar202012_02D7101.pdf emphasize that the L-1 A nonimmigrant visa is not an entrepreneurial visa classification that would allow an alien a prolonged stay in the United States in a non-managerial or non- executive capacity to start up a new business. The regulations allow for a one-year period for a U.S. petitioner to commence doing business and develop to the point that it will support a managerial or executive position. By allowing multiple petitions under the more lenient standard, USCIS would in effect allow foreign entities to create under-funded, understaffed or even inactive companies in the United States, with the expectation that they could receive multiple extensions of their L-1 status without primarily engaging in managerial or executive duties. The only provision that allows for the extension of a "new office" visa petition requires the petitioner to demonstrate that it is staffed and has been "doing business" in a regular, systematic, and continuous manner for the previous year. 8 C.F.R. § 214.2(l) (14)(ii). The petitioner concedes the U.S. company was not staffed at the time of filing. APPEAL DISMISSED [L-1A] USCIS made a site visit to the business address and a home address and found nobody still there!
  • 45. To obtain a pdf version of this document, e-mail: joseph.whalen774@gmail.com Page 45 AAO Non-Precedent L-Intracompany Transferee Decisions of 2012 Link to Decision Result, Excerpts, or Commentary Mar202012_03D7101.pdf Mar212012_01D7101.pdf APPEAL REJECTED AS UNTIMELY FILED [L1-unspecified] SUMMARILY DISMISSED [L1-A] ….The petitioner, a Texas corporation, is self-described as an investment business. It claims to be a subsidiary of [REDACTED] located in India. The petitioner has employed the beneficiary as its Director/Manager of Operations since December 2007 and seeks to extend his status for two additional years. The director denied the petition on September 15, 2011, concluding that the petitioner failed to establish that the beneficiary will be employed in the United States in a qualifying managerial or executive capacity. The petitioner subsequently filed an appeal on October 14, 2011. The director declined to treat the appeal as a motion and forwarded the appeal to the AAO for review. On the Form I-290B, Notice of Appeal or Motion, counsel for the petitioner indicated that she would submit a brief and/or additional evidence to the AAO within 30 days. Counsel indicated that "the documentation previously submitted did not completely and accurately describe the nature of the Petitioner's business and [the
  • 46. To obtain a pdf version of this document, e-mail: joseph.whalen774@gmail.com Page 46 AAO Non-Precedent L-Intracompany Transferee Decisions of 2012 Link to Decision Result, Excerpts, or Commentary Mar292012_01D7101.pdf Beneficiary's] role in the business." Counsel indicated that the petitioner would be providing additional documentation, including a business plan, to establish eligibility under Section 101 (a)(15)(L) of the Act. As of this date, no brief or evidence has been submitted and the record will be considered complete. SUMMARILY DISMISSED [L1-A] …The beneficiary was previously granted one year in L1-A classification in order to serve as president of the petitioner's new office in the United States and the petitioner now seeks to extend her status for two additional years. The director denied the petition on January 28, 2011 concluding that the petitioner failed to establish that the beneficiary would be employed in a qualifying managerial or executive capacity under the extended petition. In denying the petition, the director noted that the record demonstrates that the petitioner abandoned the original business plan which served as the basis of the new office approval granted by U.S. Citizenship and Immigration Services (USCIS). The petitioner subsequently filed an appeal on March 2, 2011. The director
  • 47. To obtain a pdf version of this document, e-mail: joseph.whalen774@gmail.com Page 47 AAO Non-Precedent L-Intracompany Transferee Decisions of 2012 Link to Decision Result, Excerpts, or Commentary Mar292012_03D7101.pdf declined to treat the appeal as a motion and forwarded the appeal to the AAO. On the Form I-290B, Notice of Appeal or Motion, counsel for the petitioner asserts that "users did not properly understand the nature of the business, and so it did not provide a full understanding of how the Beneficiary satisfied the requirements for the L-l A manager." Counsel indicated that he would submit a brief and/or evidence to the AAO within 30 days of filing the appeal. As of this date, the AAO has not received counsel's brief or any additional evidence in support of the appeal, and the record will be considered complete. SUMMARILY DISMISSED [L1-A] …The petitioner, a Georgia limited liability company established in 2008, states that it operates an [REDACTED] franchise retail store. It claims to be a subsidiary of [REDACTED] Limited, a Nigerian company. The beneficiary was previously granted one year in L-1A classification, from April 26, 2008 until April 25, 2009, in order to open a new office in the United States. U.S. Citizenship and Immigration Services (USCIS) denied the petitioner's subsequent request to extend the beneficiary status on June 26, 2009. The petitioner now seeks to extend the beneficiary's status for one additional
  • 48. To obtain a pdf version of this document, e-mail: joseph.whalen774@gmail.com Page 48 AAO Non-Precedent L-Intracompany Transferee Decisions of 2012 Link to Decision Result, Excerpts, or Commentary Mar292012_04D7101.pdf year so that she may serve in the position of executive manager. The director denied the petition concluding that the petitioner failed to establish that the beneficiary will be employed in a primarily managerial or executive capacity under the extended petition. The director further determined that the petitioner failed to establish that the U.S. company had been doing business for the previous year. APPEAL REJECTED, CASE REMANDED [L1-A] DISCUSSION: The Director, California Service Center, denied the nonimmigrant visa petition. The matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be rejected as untimely filed. The AAO will return the matter to the director for consideration as a motion to reopen and reconsider. The petitioner filed the nonimmigrant petition seeking to classify the beneficiary under section 101(a)(15)(L) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1101(a)(15)(L) as an intracompany transferee employed in a managerial or executive capacity. The petitioner, a California limited liability company, states that it operates a production company. It claims to be a subsidiary of [REDACTED] located in
  • 49. To obtain a pdf version of this document, e-mail: joseph.whalen774@gmail.com Page 49 AAO Non-Precedent L-Intracompany Transferee Decisions of 2012 Link to Decision Result, Excerpts, or Commentary Mar292012_06D7101.pdf [REDACTED], Georgia. The petitioner seeks to employ the beneficiary as the director of business development for its new office in the United States for a period of one year. The director denied the petition concluding that the petitioner failed to establish: (1) that the beneficiary has been employed by the foreign entity in a primarily managerial or executive capacity; and (2) that it has secured sufficient physical premises to house the new office in the United States. * * * * * It was timely filed, either without a check for the fee, or with a check in the wrong amount, and was returned to the petitioner. When it was resubmitted, it ended up being late (at 41 days since date of decision being appealed). * * * * * The regulation at 8 C.F.R. § 103.3(a)(2) (v)(B)(2) states that, if an untimely appeal meets the requirements of a motion to reopen or a motion to reconsider, the appeal must be treated as a motion, and a decision must be made on the merits of the case. The official having jurisdiction over a motion is the official who made the last decision in the proceeding, in this case the Director of the California Service Center. See 8 C.F.R. § 103.5(a)(1)(ii). SUMMARILY DISMISSED [L1-A]
  • 50. To obtain a pdf version of this document, e-mail: joseph.whalen774@gmail.com Page 50 AAO Non-Precedent L-Intracompany Transferee Decisions of 2012 Link to Decision Result, Excerpts, or Commentary Mar292012_07D7101.pdf Mar292012_08D7101.pdf …The petitioner, an Arizona corporation states that it is engaged in the import and export of meat. It claims to be a subsidiary of [REDACTED] located in Mexico. The petitioner has employed the beneficiary as its USA Sales Executive in L-1A status since May 2008 and now seeks to extend his status for three additional years. The director denied the petition on June 18, 2010, concluding that the petitioner failed to establish that it will employ the beneficiary in the United States in a primarily managerial or executive capacity. SUMMARILY DISMISSED [L1-A] This appears to a second copy of the previously listed decision. SUMMARILY DISMISSED [L1-A] …The petitioner, a Florida corporation, states that it is engaged in the sale of concentrated orange juice and books. It claims to be a subsidiary of [REDACTED] located in Brazil. The petitioner seeks to employ the beneficiary in the position of president for a period of three years. The beneficiary was previously granted one year in L-1A status, from July 24, 2009 until July 23, 2010, in order to open
  • 51. To obtain a pdf version of this document, e-mail: joseph.whalen774@gmail.com Page 51 AAO Non-Precedent L-Intracompany Transferee Decisions of 2012 Link to Decision Result, Excerpts, or Commentary a new office in the United States. The director denied the petition concluding that the petitioner failed to establish that the beneficiary would be employed in the United States in a primarily managerial or executive capacity. In denying the petition, the director observed that the petitioner postponed operation of its proposed orange juice distribution business. The director noted that, while the beneficiary now appears to be acting as a sales representative for a book company, the U.S. entity has only two employees and has not shown that it has grown to the extent that it can support a primarily managerial or executive position. The petitioner subsequently filed an appeal. The director declined to treat the appeal as a motion and forwarded the appeal to the AAO for review. On appeal, the beneficiary submits a letter explaining that he "tried for a few months to launch the business I planned to start and develop here but it was not possible." The beneficiary states: "I really understand that what the examiners meant to see was that, during the startup year, I was able to develop and grow my business. And this, believe me, was my biggest hope." The beneficiary indicates that "it was my real intention, and I haven't measured any efforts to develop and raise my business here."
  • 52. To obtain a pdf version of this document, e-mail: joseph.whalen774@gmail.com Page 52 AAO Non-Precedent L-Intracompany Transferee Decisions of 2012 Link to Decision Result, Excerpts, or Commentary Apr022012_02D7101.pdf SUMMARILY DISMISSED [L1-A] …The petitioner, a Florida corporation, states that it is engaged in the export of new and used construction equipment. It claims to be a subsidiary of [REDACTED] located in Colombia. The beneficiary was previously granted one year in L-1A status in order to open the petitioner's new office in the United States as the company's president. The petitioner now seeks to extend her status for three additional years. The director denied the petition on June 21, 2010 concluding that the petitioner failed to establish that the beneficiary would be employed in a qualifying managerial or executive capacity under the extended petition. In denying the petition, the director noted that the petitioner submitted an incomplete response to a request for additional evidence issued on April 29, 2010, thus leaving several unresolved discrepancies in the record. The petitioner subsequently filed an appeal on July 26, 2010. The director declined to treat the appeal as a motion and forwarded the appeal to the AAO for review. On the Form I-290B, Notice of Appeal or Motion, counsel states: "The denial letter makes an incorrect assumption, namely, that the beneficiary ... was not acting in a 'managerial
  • 53. To obtain a pdf version of this document, e-mail: joseph.whalen774@gmail.com Page 53 AAO Non-Precedent L-Intracompany Transferee Decisions of 2012 Link to Decision Result, Excerpts, or Commentary Apr022012_03D7101.pdf Apr022012_04D7101.pdf Apr022012_05D7101.pdf Apr022012_06D7101.pdf position.' There will be provided more evidence concerning the 'parent company.' Additional time is needed to gather the necessary evidence." Counsel indicated that he would submit a brief and/or evidence to the AAO within 30 days of filing the appeal. As of this date, the AAO has not received counsel's brief or any additional evidence in support of the appeal, and the record will be considered completed. SUMMARILY DISMISSED [L1-A] Two Georgia dry cleaning stores. SUMMARILY DISMISSED [L1-A] …The petitioner, a Texas corporation established in 2009, states that it is engaged in the manufacturing and stamping of metal parts. SUMMARILY DISMISSED [L1-A] …The petitioner, a California corporation, states that it operates a clothing wholesale distribution business. SUMMARILY DISMISSED [L1-A]
  • 54. To obtain a pdf version of this document, e-mail: joseph.whalen774@gmail.com Page 54 AAO Non-Precedent L-Intracompany Transferee Decisions of 2012 Link to Decision Result, Excerpts, or Commentary Apr022012_08D7101.pdf Apr022012_09D7101.pdf Apr022012_10D7101.pdf …The petitioner is a New Jersey limited liability company engaged in the wholesale distribution of beverages. SUMMARILY DISMISSED [L1-A] …The petitioner is a Tanzanian company engaged in mining and mineral product exports. SUMMARILY DISMISSED [L1-A] …The petitioner is a New Jersey limited engaged in the wholesale distribution of beverages. Seems to be another copy of #6, above. SUMMARILY DISMISSED [L1-A] …The petitioner, a Florida corporation established in 2010, states that it intends to operate a retail and wholesale store specializing in women's lingerie. * * * * * The director denied the petition on June 23, 2010, concluding that the petitioner failed to establish: (1) that the U.S. company will support a primarily managerial or executive position within one year; or (2) that the U.S. company has secured sufficient physical premises to house the new office.
  • 55. To obtain a pdf version of this document, e-mail: joseph.whalen774@gmail.com Page 55 AAO Non-Precedent L-Intracompany Transferee Decisions of 2012 Link to Decision Result, Excerpts, or Commentary Apr052012_01D7101.pdf Apr052012_04D7101.pdf 2nd APPEAL REJECTED AS IMPROPERLY FILED [L1-A] [AAO LACKS JURISDICTION] …retail sale of wireless products and services…. The director denied the petition concluding that the petitioner failed to establish that the beneficiary would be employed by the U.S. entity in a primarily managerial or executive capacity within one year. The AAO dismissed the petitioner's appeal in a decision dated February 5, 2010. In addition to finding that the beneficiary would not be employed in the United States in a primarily managerial or executive capacity, the AAO found that the petitioner failed to establish: (1) that it had secured sufficient physical premises to house the new office pursuant to 8 C.F.R. § 214.2(l)(3)(v)(A); and (2) the size of the United States investment, as required by 8 C.F.R. § 14.2(l)(3)(v)(C)(2). SUMMARILY DISMISSED [L1-B] …The petitioner, a [REDACTED] corporation, is a software and services company with an Indian subsidiary, [REDACTED]. The petitioner seeks to transfer the beneficiary to the United States to serve in the position of senior software engineer for a three-year period.
  • 56. To obtain a pdf version of this document, e-mail: joseph.whalen774@gmail.com Page 56 AAO Non-Precedent L-Intracompany Transferee Decisions of 2012 Link to Decision Result, Excerpts, or Commentary Apr052012_05D7101.pdf The director denied the petition on December 21, 2010, concluding that the petitioner failed to establish that the beneficiary has specialized knowledge or that he would be employed in the United States in a position that requires specialized knowledge. 2nd APPEAL REJECTED AS IMPROPERLY FILED [L1-A] [AAO LACKS JURISDICTION] The petitioner, a Hong Kong corporation, claims to be the parent company of the beneficiary's U.S. employer, an Illinois corporation that operates as a freight forwarding company. The beneficiary was initially granted L-1A classification for a one-year period in order to open a new office in the United States, and the petitioner now seeks to extend his status for three additional years. The director denied the petition, concluding that the petitioner failed to establish that the beneficiary would be employed in a primarily managerial or executive capacity under the extended petition. The petitioner appealed the director's decision to the AAO. On March 12, 2010, the AAO dismissed the appeal concluding that the petitioner failed to establish that the beneficiary will be employed in a primarily managerial or
  • 57. To obtain a pdf version of this document, e-mail: joseph.whalen774@gmail.com Page 57 AAO Non-Precedent L-Intracompany Transferee Decisions of 2012 Link to Decision Result, Excerpts, or Commentary Apr052012_06D7101.pdf executive capacity. The AAO acknowledged that the director had overlooked evidence related to the beneficiary's subordinate staff, took this evidence into consideration, and concurred with the director's ultimate conclusion that the petitioner failed to demonstrate that the beneficiary would be engaged in duties that are primarily managerial or executive in nature. On April 9, 2010, counsel for the petitioner filed a second Form I-290B, Notice of Appeal or Motion, and indicated under part two that he is filing an appeal. The appeal must be rejected. The AAO does not exercise appellate jurisdiction over AAO decisions, The AAO exercises appellate jurisdiction over the matters described at 8 C.F.R. § 103.1(f)(3)(iii) (as in effect on February 28, 2003). See DHS Delegation Number 0150.1; 8 C.F.R. § 103.3(a)(iv). It should be noted that the AAO advised the petitioner in its previous decision that it had the option of filing a motion to reopen or a motion to reconsider the AAO's decision pursuant to the regulations at 8 C.F.R. § 103.5. The regulations do not provide the petitioner the option of filing more than one appeal with respect to the same visa petition. Accordingly, the second appeal is not properly before the AAO. APPEAL REJECTED AS UNTIMELY FILED [L1-unspecified]
  • 58. To obtain a pdf version of this document, e-mail: joseph.whalen774@gmail.com Page 58 AAO Non-Precedent L-Intracompany Transferee Decisions of 2012 Link to Decision Result, Excerpts, or Commentary Apr092012_01D7101.pdf DISCUSSION: The Director, Vermont Service Center, denied the nonimmigrant visa petition. The petitioner subsequently filed a motion to reconsider. Although the director granted the petitioner's motion, the underlying denial of the petition was affirmed in a second decision. The matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be rejected as untimely filed. * * * * * The AAO further notes that even if the appeal were not untimely filed, it would have been summarily dismissed pursuant to 8 C.F.R. § 103.3(a)(1)(v) states, in pertinent part: An officer to whom an appeal is taken shall summarily dismiss any appeal when the party concerned fails to identify specifically any erroneous conclusion of law or statement of fact for the appeal. APPEAL REJECTED AS UNTIMELY, CASE REMANDED [L1-unspecified] DISCUSSION: The Director, Vermont Service Center, revoked the nonimmigrant visa petition approval. The matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be rejected as untimely filed. The AAO will return the matter to the director for consideration as a motion to reopen and reconsider.
  • 59. To obtain a pdf version of this document, e-mail: joseph.whalen774@gmail.com Page 59 AAO Non-Precedent L-Intracompany Transferee Decisions of 2012 Link to Decision Result, Excerpts, or Commentary Apr112012_01D7101.pdf Apr122012_01D7101.pdf SUMMARILY DISMISSED [L1-A] …The petitioner states that it is "engaged in commercial investments in chain of fast food restaurants." The petitioner seeks to employ the beneficiary as its president - CEO. The beneficiary was initially granted a one-year period of stay in L-1A status to open a new office in the United States. The petitioner now seeks to extend the beneficiary‟s stay in order to continue to fill the position of President - CEO. On December 19, 2011, the director denied the petition, concluding that: (1) the petitioner failed to establish that the beneficiary will be employed in a position that is primarily executive or managerial in nature, (2) the petitioner failed to establish that it has sufficient physical premises to house the office, and (3) the petitioner failed to demonstrate that the foreign entity invested sufficient funds into the petitioner. APPEAL DISMISSED [L1-B] …The petitioner, a Kansas corporation, states that it is engaged in the development and manufacture of railway speed and control technology. The petitioner claims to be a subsidiary of
  • 60. To obtain a pdf version of this document, e-mail: joseph.whalen774@gmail.com Page 60 AAO Non-Precedent L-Intracompany Transferee Decisions of 2012 Link to Decision Result, Excerpts, or Commentary [REDACTED], located in Harbin, China. The petitioner seeks to employ the beneficiary in the position of field engineer for a period of three years. The director initially approved the petition and granted the requested status on June 4, 2008. On February 5, 2010, the director issued a notice of intent to revoke the approval, pursuant to 8 C.F.R. § 214.2(1)(9)(iii)(A)(5), based on a finding that the statement of facts made in the petition was not true and correct. The director instructed the petitioner to submit additional evidence or arguments in rebuttal of the issues raised in the notice of intent to revoke. The petitioner submitted rebuttal evidence on March 4, 2010. The director revoked the approval of the petition on March 19, 2010, concluding that the petitioner failed to establish that the United States and foreign entities have a qualifying relationship. In revoking the approval, the director found that the petitioner failed to overcome serious discrepancies in the record that undermine its claim that it is a subsidiary of the beneficiary's foreign employer. The petitioner subsequently filed an appeal. The director declined to treat the appeal as a motion and forwarded the appeal to the AAO for review. On appeal, the petitioner submits evidence intended to establish that it has filed amended tax
  • 61. To obtain a pdf version of this document, e-mail: joseph.whalen774@gmail.com Page 61 AAO Non-Precedent L-Intracompany Transferee Decisions of 2012 Link to Decision Result, Excerpts, or Commentary Apr132012_01D7101.pdf Apr132012_02D7101.pdf returns with the Internal Revenue Service (IRS) which reflect that the beneficiary's foreign employer owns the U.S. company. APPEAL DISMISSED [L1-A] …The petitioner, a New York corporation, states that it operates an art gallery and provides consulting services to Russian clientele. It claims to be a subsidiary of [REDACTED] Liability Company, located in Russia. The beneficiary was previously granted one year in L-1A status in order to open a new office in the United States and the petitioner now seeks to extend her status for two additional years. The director denied the petition based on two independent and alternative grounds, concluding that the petitioner failed to establish (1) that the beneficiary will be employed in the United States in a primarily managerial or executive capacity; and (2) that the foreign entity continues to do business as a qualifying organization abroad. DENIAL AFFIRMED ON CERTIFICATION [L1-A] The petitioner filed this nonimmigrant petition seeking to classify the beneficiary as an L-1A nonimmigrant intracompany transferee pursuant to section 101(a)(15)
  • 62. To obtain a pdf version of this document, e-mail: joseph.whalen774@gmail.com Page 62 AAO Non-Precedent L-Intracompany Transferee Decisions of 2012 Link to Decision Result, Excerpts, or Commentary Apr132012_04D7101.pdf (L) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1101(a)(15)(L). The petitioner, a Delaware limited liability company, operates a Japanese restaurant in Hawaii. It claims to have an affiliate relationship with the beneficiary's last foreign employer, Nobu London Limited, and with the beneficiary's current U.S. employer, Nobu Associates (South Beach) L.P. The petitioner seeks to employ the beneficiary in the position of beverage and bar manager and requests a two-year extension of the beneficiary's L- 1A status. In a decision dated July 27, 2010, the director recommended that the petition be denied and certified the decision to the AAO for review. The director's recommendation was based on a finding that the U.S. petitioner does not have a qualifying relationship with the beneficiary's last foreign employer. In accordance with 8 C.F.R. § 1 03 A( a )(2), the director notified the petitioner of the certification and provided an opportunity for the petitioner to submit a brief to the AAO within 30 days. As of this date, the AAO has received no brief or additional evidence and the record will be considered complete and ready for adjudication. SUMMARILY DISMISSED [L1-A]
  • 63. To obtain a pdf version of this document, e-mail: joseph.whalen774@gmail.com Page 63 AAO Non-Precedent L-Intracompany Transferee Decisions of 2012 Link to Decision Result, Excerpts, or Commentary Apr132012_05D7101.pdf The petitioner filed a nonimmigrant visa petition seeking to continue the employment of the beneficiary in the position of president for an additional three years as an L-1A nonimmigrant intracompany transferee pursuant to section 101(a)(15)(L) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1101(a)(15)(L). The director denied the petition based on the finding that the petitioner failed to establish that the beneficiary has been and would be employed in the United States in a managerial or executive capacity. On appeal, counsel did not expressly dispute the director's finding. Rather, counsel checked off the box in the Form I- 290B indicating that an appellate brief or additional information would be provided within 30 days in support of the appeal. To date, however, approximately eleven months since the appeal was filed, U.S. Citizenship and Immigration Services has received no supplemental information in support of the appeal. Therefore, the AAO will consider the record complete as presently constituted. SUMMARILY DISMISSED [L1-A] The petitioner filed a nonimmigrant visa petition seeking to continue the employment of the beneficiary in the
  • 64. To obtain a pdf version of this document, e-mail: joseph.whalen774@gmail.com Page 64 AAO Non-Precedent L-Intracompany Transferee Decisions of 2012 Link to Decision Result, Excerpts, or Commentary Apr192012_02D7101.pdf position of president for an additional three years as an L-1A nonimmigrant intracompany transferee pursuant to section 101(a)(15)(L) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1101(a)(15)(L). The director denied the petition based on the following adverse findings: 1) the petitioner misrepresented a material fact and failed to establish that it maintained sufficient physical premises where the beneficiary would be employed; and 2) the petitioner failed to establish that the beneficiary has been and would be employed in the United States in a managerial or executive capacity. APPEAL DISMISSED [L1-A] …The petitioner, a California corporation established in November 2009, states that it intends to engage in the import of gold jewelry. It claims to be a subsidiary of [REDACTED] located in [REDACTED]. The petitioner seeks to employ the beneficiary as the general manager of its new office in the United States. The director denied the petition, concluding that the petitioner failed to establish: (1) that the beneficiary has been employed by the foreign entity in a qualifying managerial or executive capacity; and (2) that the petitioner has secured sufficient physical premises to house the new office.
  • 65. To obtain a pdf version of this document, e-mail: joseph.whalen774@gmail.com Page 65 AAO Non-Precedent L-Intracompany Transferee Decisions of 2012 Link to Decision Result, Excerpts, or Commentary Apr232012_01D7101.pdf APPEAL DISMISSED [L1-Blanket] The petitioner filed this blanket petition seeking continuing approval of itself and its subsidiaries as qualifying organizations for the purpose of transferring employees to the United States as L-1 nonimmigrant intracompany transferees pursuant to section 101(a)(15)(L) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1101(a)(15)(L). The petitioner, a Delaware corporation, is engaged in computer aided design engineering and development. It states that it is the parent company of four wholly-owned subsidiaries, including: (1) Cambric Limited (Bahamas); (2) Cambric Consulting SRL, located in Romania; (3) Cambric GmbH, located in Germany; and (4) Cambric Services, LLC, located in Armenia. The director denied the blanket petition after concluding that the petitioner meets none of the three eligibility conditions set forth at 8 C.F.R. § 214.2(1)(4)(D), of which at least one must be satisfied in order for the requested extension to be granted. Specifically, the director observed that there is no record that the petitioner has obtained approval of at least 10 "L" managers, executives, or specialized knowledge professionals during the previous 12 months; no
  • 66. To obtain a pdf version of this document, e-mail: joseph.whalen774@gmail.com Page 66 AAO Non-Precedent L-Intracompany Transferee Decisions of 2012 Link to Decision Result, Excerpts, or Commentary Apr232012_02D7101.pdf Apr232012_03D7101.pdf evidence that the petitioner's income from U.S. operations is $25 million; and no evidence that the petitioner employs a United States workforce of at least 1 ,000 employees. DISMISSED AS MOOT [L1-A] A review of U.S. Citizenship and Immigration Services (USCIS) records indicates that subsequent to the denial of the instant petition, the petitioner filed a new Form 1-129 on the beneficiary's behalf. US CIS records further indicate that this second petition was approved, granting the beneficiary L-1A status from March 1, 2010 until February 28, 2011. US CIS approved a subsequent petition extending the beneficiary's status through February 28, 2013. SUMMARILY DISMISSED [L1-B] The petitioner is a corporation established in the Philippines. It seeks to transfer the beneficiary to its claimed U.S. branch, [REDACTED], a California limited liability company established in November 2009. The petitioner seeks to employ the beneficiary in the position of executive business evaluator in the new U.S. office for a period of one year.
  • 67. To obtain a pdf version of this document, e-mail: joseph.whalen774@gmail.com Page 67 AAO Non-Precedent L-Intracompany Transferee Decisions of 2012 Link to Decision Result, Excerpts, or Commentary Apr242012_02D7101.pdf The director denied the petition on April 15, 2010, citing two independent and alternative grounds for denial. Specifically, the director determined that the petitioner failed to establish: (1) that the beneficiary possesses specialized knowledge or that she would be employed in the United States in a position that requires specialized knowledge; and (2) that the United States and foreign entities have a qualifying relationship. APPEAL DISMISSED [L1-A] DISCUSSION: The Director, California Service Center, denied the nonimmigrant visa petition. The matter then came before the Administrative Appeals Office (AAO) on appeal. On January 26, 2012, this office provided the petitioner with notice of adverse information in the record and afforded the petitioner an opportunity to provide evidence that might overcome this information. * * * * * …Given that the petitioner's corporate status is shown as administratively dissolved, the AAO finds that the petitioner is no longer a legal entity that is qualified to file a nonimmigrant petition in the beneficiary's behalf. Where there is no active and legal U.S. entity, no legitimate job offer exists, and the request that a foreign worker be allowed to fill the position offered in the petition has become moot. (Footnote omitted.)
  • 68. To obtain a pdf version of this document, e-mail: joseph.whalen774@gmail.com Page 68 AAO Non-Precedent L-Intracompany Transferee Decisions of 2012 Link to Decision Result, Excerpts, or Commentary Apr242012_04D7101.pdf APPEAL DISMISSED [L1-A] DISCUSSION: The Director, Vermont Service Center denied the nonimmigrant visa petition. It then came before the Administrative Appeals Office (AAO) on appeal. On January 4, 2012, this office provided the petitioner with notice of adverse information in the record and afforded the petitioner an opportunity to provide evidence that might overcome this information. * * * * * In order to seek employment of the beneficiary as an intracompany transferee, the petitioner must be a United States legal entity that is the same employer as the firm, corporation, or other legal entity that employed the beneficiary abroad or the U.S. petitioner must be a subsidiary or affiliate of that foreign entity, and it must be doing business as defined at 8 C.F.R. § 214.2(1)(1 )(ii)(H). Given that the petitioner's corporate status is shown as inactive and administratively dissolved, the AAO finds that the petitioner is no longer a legal entity that is qualified to file a nonimmigrant petition in the beneficiary's behalf.
  • 69. To obtain a pdf version of this document, e-mail: joseph.whalen774@gmail.com Page 69 AAO Non-Precedent L-Intracompany Transferee Decisions of 2012 Link to Decision Result, Excerpts, or Commentary Apr272012_01D7101.pdf MOTION DISMISSED [L1-A] …The petitioner, a Texas corporation established in September 2008, intends to operate a retail business. The petitioner claims that it is a subsidiary of MIS Shoe Shoppe, located in India. The petitioner seeks to employ the beneficiary as the president and chief executive officer of its new office in the United States for a one- year period. The director denied the petition concluding that the petitioner failed to establish that the beneficiary will be employed in the United States in a primarily managerial or executive capacity. The AAO dismissed the petitioner's appeal on April 29, 2010, based on a finding that the petitioner: (1) failed to establish that the beneficiary would be employed in a primarily managerial or executive capacity within one year of approval of the petition; (2) failed to establish that the petitioner had secured sufficient physical premises to house the new office as of the date of filing; and (3) failed to provide evidence of the size of the United States investment. In dismissing the appeal, the AAO discussed in detail the petitioner's claimed acquisition of a 50 percent interest in an established U.S. company, and whether the acquisition impacted the petitioner's initial claim that it is a "new office" as defined at 8 C.P.R. § 214.2(l) (1)(ii)(F).
  • 70. To obtain a pdf version of this document, e-mail: joseph.whalen774@gmail.com Page 70 AAO Non-Precedent L-Intracompany Transferee Decisions of 2012 Link to Decision Result, Excerpts, or Commentary Apr272012_02D7101.pdf Apr272012_03D7101.pdf APPEAL DISMISSED [L1-A] …The petitioner, a corporation established under the laws of the State of Florida, states that it operates an import and export business. It claims to be a subsidiary of Champion S.A. Importaciones Exportaciones, located in Paraguay. The beneficiary was previously granted L-1A classification for a period of one year in order to open a new office in the United States as the company's general manager. The petitioner now seeks to extend the beneficiary's status for one additional year. The director denied the petition, concluding that the petitioner failed to establish: (1) that the beneficiary would be employed in a qualifying managerial or executive capacity under the extended petition; or (2) that the petitioner had sufficient physical premises to house the U.S. operation. The director affirmed this determination on motion. APPEAL DISMISSED [L1-A] The petitioner claims to be a corporation organized under the laws of the State of Maryland. It seeks to employ the beneficiary as its vice president. Accordingly, the petitioner endeavors to classify the beneficiary as a nonimmigrant
  • 71. To obtain a pdf version of this document, e-mail: joseph.whalen774@gmail.com Page 71 AAO Non-Precedent L-Intracompany Transferee Decisions of 2012 Link to Decision Result, Excerpts, or Commentary Apr272012_04D7101.pdf alien pursuant to section 101 (a)(15)(L) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1101 (a)(15)(L). The director denied the petition based on a determination that the petitioner failed to establish that the beneficiary had at least one continuous year of full-time employment abroad with a qualifying organization within the three years preceding the filing of the petition. The AAO conducts appellate review on a de novo basis. See Soltane v. DOJ, 381 F.3d 143, 145 (3d Cir. 2004). Pursuant to 8 C.F.R. § 103.2(b)(l6)(i), this office notified the petitioner on January 12,2012 that, according to the AAO's search of State of Maryland corporate records and business registrations, the petitioner's corporate status has been forfeited. … SUMMARILY DISMISSED [L1-A] The petitioner, a Florida limited liability company, states that it operates a retail clothing store. It claims to be a subsidiary of [REDACTED]. The beneficiary was previously granted L-1A status from February 22, 2009 until December 28, 2009 in order to open the new office in the United States. The petitioner now seeks to extend the beneficiary's status so that he may continue to serve as the manager of the U.S. company for two additional years.
  • 72. To obtain a pdf version of this document, e-mail: joseph.whalen774@gmail.com Page 72 AAO Non-Precedent L-Intracompany Transferee Decisions of 2012 Link to Decision Result, Excerpts, or Commentary Apr272012_05D7101.pdf The director denied the petition on March 19, 2010, concluding that the petitioner failed to establish: (1) that the beneficiary would be employed in a primarily managerial or executive capacity under the extended petition; (2) that the U.S. entity had been doing business for the previous year; or (3) that the foreign entity continues to do business in India. The director observed that, while the beneficiary was granted L-1A status in February 2009, the petitioner provided no evidence of any business activities conducted prior to November 2009, and no evidence that the company had grown to the extent where it could employ the beneficiary in a position that is primarily managerial or executive in nature. The director discussed the beneficiary's duties and the duties of his claimed subordinates and concluded that the petitioner failed to establish that the beneficiary would be relieved from performing non-qualifying operational and first-line supervisory duties associated with the operation of a retail store. MOTION DISMISSED [L1-A] …. Pursuant to 8 C.F.R. § 103.2(b)(16)(i), the AAO notified the petitioner that a search of the State of California's corporate records and business registrations revealed that the petitioner's corporate status was suspended. ….
  • 73. To obtain a pdf version of this document, e-mail: joseph.whalen774@gmail.com Page 73 AAO Non-Precedent L-Intracompany Transferee Decisions of 2012 Link to Decision Result, Excerpts, or Commentary Apr272012_06D7101.pdf APPEAL DISMISSED [L1-A] …The petitioner, a corporation established under the laws of the State of Illinois in 2009, states that it intends to engage in the import and export of textiles. It claims to be a subsidiary of [REDACTED], a Chinese company. The petitioner seeks to employ the beneficiary as the general manager of its new office in the United States. The director denied the petition on February 22, 2010, based on two independent and alternative grounds. Specifically, the director determined that the petitioner failed to establish: (1) that the U.S. and foreign entities have a qualifying relationship; and (2) that the foreign entity has employed the beneficiary in a primarily managerial or executive capacity. The petitioner subsequently filed an appeal. The director declined to treat the appeal as a motion and forwarded the appeal to the AAO for review. On appeal, counsel for the petitioner asserts that the petitioner has submitted "strong evidence" of its qualifying relationship with the foreign entity, as well as evidence to demonstrate that the beneficiary is employed in a qualifying managerial or executive capacity as the foreign entity's general manager. Counsel submits a brief and additional evidence in support of the appeal.
  • 74. To obtain a pdf version of this document, e-mail: joseph.whalen774@gmail.com Page 74 AAO Non-Precedent L-Intracompany Transferee Decisions of 2012 Link to Decision Result, Excerpts, or Commentary Apr272012_08D7101.pdf APPEAL DISMISSED AS MOOT [L1-B] DISCUSSION: The Director, California Service Center, denied the nonimmigrant visa petition. The matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed as moot. The petitioner filed this nonimmigrant petition to classify the beneficiary as an intracompany transferee employed in a specialized knowledge capacity pursuant to section 101 (a)(15)(L) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1101 (a)(15)(L), The petitioner, a computer-aided design engineering and development firm, seeks to extend the beneficiary's L-1B status so that he may continue to serve in the position of project engineer II/ mechanical engineering liaison. The director denied the petition on January 12, 2010 after concluding that the petitioner failed to establish that the beneficiary's position requires specialized knowledge or that the beneficiary's employment at an unaffiliated employer's facilities would be permissible under section 214(c )(2)(F) of the Act, as created by the L-1 Visa Reform Act of 2004. The petitioner filed a timely appeal of the director's decision.
  • 75. To obtain a pdf version of this document, e-mail: joseph.whalen774@gmail.com Page 75 AAO Non-Precedent L-Intracompany Transferee Decisions of 2012 Link to Decision Result, Excerpts, or Commentary Apr272012_09D7101.pdf A review of U.S. Citizenship and Immigration Services (USCIS) records indicates that the beneficiary of this petition adjusted status to that of a U.S. lawful permanent resident as of June 9, 2010. Accordingly, while the petitioner has not withdrawn the appeal in this proceeding, it would appear that the beneficiary is presently a lawful permanent resident and the issues in this proceeding are moot. Therefore, this appeal will be dismissed. ORDER: The appeal is dismissed. APPEAL DISMISSED [L1-A] …The petitioner, a Florida corporation established in November 2007, indicates that it intends to engage in the sale of men's tailored clothing and accessories. It claims to have a qualifying relationship with [REDACTED]. The petitioner seeks to employ the beneficiary in the position of textile designer for a period of three years. The director denied the petition, concluding that the petitioner failed to establish: (1) that the petitioner has secured sufficient physical premises to house its new office in the United States; and (2) that the beneficiary would be employed in a primarily managerial or
  • 76. To obtain a pdf version of this document, e-mail: joseph.whalen774@gmail.com Page 76 AAO Non-Precedent L-Intracompany Transferee Decisions of 2012 Link to Decision Result, Excerpts, or Commentary executive capacity, or that the U.S. entity would support a managerial or executive position within one year of commencing operations in the United States. The petitioner subsequently filed an appeal. The director declined to treat the appeal as a motion and forwarded the appeal to the AAO for review. On appeal, the petitioner asserts that the director erred by categorizing the U.S. entity as a new office. The petitioner asserts that the company has been doing business since 2008 and currently operates from a subleased office. The petitioner further contends that the director misunderstood the nature of the petitioner's business and its ability to support a primarily managerial or executive position within one year. The petitioner submits a statement and additional evidence in support of the appeal. * * * * * The petitioner filed the Form 1-129, Petition for a Nonimmigrant Worker, on November 23, 2009. The petitioner provided evidence that the U.S. company was incorporated in the State of Florida on November 9, 2007. However, the petitioner indicated on the L Classification Supplement to Form 1-129 that the beneficiary is coming to the United States in order to open a new office. The petitioner stated: Beneficiary is coming to US to open a new business. Business is already
  • 77. To obtain a pdf version of this document, e-mail: joseph.whalen774@gmail.com Page 77 AAO Non-Precedent L-Intracompany Transferee Decisions of 2012 Link to Decision Result, Excerpts, or Commentary open but in a starting position as a new business. Hiring of employees is needed as a rental or lease of a warehouse, obtaining new clients, distributors, new line of clothing, etc. Establish Manufacturing facilities. The petitioner stated on the petition that the U. S. company has gross income of $21,703, no employees and no net income. The petitioner's initial evidence did not include a business plan, lease agreement or evidence of any business activities undertaken by the U.S. company. In response to a request for additional evidence, the petitioner submitted a business plan which indicates that the U.S. company is a "new business," and that it will establish a store in Miami for the sale of men's clothing and accessories. The business plan projects that the company will open its store in September 2010, and indicates that the company has subleased an office space which it is using while obtaining permits, licenses and other matters. The business plan includes a projected profit and loss statement for 2010 which indicates that the company anticipates $0 in gross income through August 2010. Based on these facts, the director applied the regulations applicable to new offices, pursuant to 8 C.F.R. § 214.2(l)(3)(v). The
  • 78. To obtain a pdf version of this document, e-mail: joseph.whalen774@gmail.com Page 78 AAO Non-Precedent L-Intracompany Transferee Decisions of 2012 Link to Decision Result, Excerpts, or Commentary May032012_01D7101.pdf AAO notes that there was no evidence submitted at the time of filing or in response to the RFE to suggest that the U.S. company had been doing business as defined in the regulations. APPEAL DISMISSED [L1-A] …The petitioner, a software company, was incorporated in the Commonwealth of Massachusetts in 2008. It states that it is a subsidiary of [REDACTED] located in Switzerland. The beneficiary was initially granted one year in L-1A classification in order to open a new office in the United States and the petitioner now seeks to extend his status so that he may serve in the position of president for two additional years. The director denied the petition on March 24, 2010 based on a finding that the petitioner failed to establish that the beneficiary will be employed in the United States in a primarily managerial or executive capacity. The petitioner subsequently filed an appeal. The director declined to treat the appeal as a motion and forwarded the appeal to the AAO for review. On appeal, counsel for the petitioner asserts that the director's decision was based on the erroneous assumption that he would be managing professional employees. Counsel asserts that the regulations allow
  • 79. To obtain a pdf version of this document, e-mail: joseph.whalen774@gmail.com Page 79 AAO Non-Precedent L-Intracompany Transferee Decisions of 2012 Link to Decision Result, Excerpts, or Commentary May032012_02D7101.pdf an L-1A visa holder to manage an essential function of the organization and contends that the beneficiary in this matter qualifies as a function manager. * * * * * The AAO does not dispute that small companies require leaders or individuals who plan, formulate, direct, manage, oversee and coordinate activities; the petitioner must, however, establish with specificity that the beneficiary's duties comprise primarily managerial or executive responsibilities and not routine operational or administrative tasks. The AAO concurs with the director's determination that the petitioner has failed to support its claim that the beneficiary will be employed in a primarily managerial or executive capacity. We emphasize that our holding is based on evidence in the record indicating that the beneficiary performs primarily non-managerial duties; our decision does not rest on the size of the petitioning entity. APPEAL DISMISSED AS MOOT [L1-A] ….Pursuant to 8 C.F.R. § 103.2(b)(16)(i), the AAO notified the petitioner that a search of the State of Florida corporate records and business registrations revealed that the petitioner's corporate status was "inactive" and that the company had been administratively dissolved. ….
  • 80. To obtain a pdf version of this document, e-mail: joseph.whalen774@gmail.com Page 80 AAO Non-Precedent L-Intracompany Transferee Decisions of 2012 Link to Decision Result, Excerpts, or Commentary May042012_01D7101.pdf APPEAL DISMISSED [L1-A] The petitioner, a Nevada corporation, states that it operates a retail clothing store. It claims to have a qualifying relationship with [REDACTED] located in Cuautitlan, Mexico. The petitioner has employed the beneficiary as its director/president since 2006 and now seeks to extend his status for two additional years. The director denied the petition based on two independent and alternative grounds. Specifically, the director determined that the petitioner failed to establish: (1) that the U.S. and foreign entities have a qualifying relationship; and (2) that the U.S. entity would employ the beneficiary in a qualifying managerial or executive capacity. The petitioner subsequently filed an appeal. The director declined to treat the appeal as a motion and forwarded the appeal to the AAO for review. On appeal, counsel for the petitioner asserts the director "failed to favorably weigh substantial evidence" that the petitioner and the foreign entity share common ownership and control. In addition, counsel asserts that the director erred by concluding that the beneficiary does not qualify for the benefit sought in his capacity as a "function manager." Counsel submits a brief in support of the appeal.
  • 81. To obtain a pdf version of this document, e-mail: joseph.whalen774@gmail.com Page 81 AAO Non-Precedent L-Intracompany Transferee Decisions of 2012 Link to Decision Result, Excerpts, or Commentary May042012_02D7101.pdf May082012_01D7101.pdf MOTION REJECTED AS UNTIMELY FILED [L1-unspecified] The instant Motion follows an AAO Appeal Dismissal but was not received until 41 days after the date of the dismissal instead of the 33 days allowed following a mailed decision. APPEAL DISMISSED [L1-A] The petitioner is a Chinese company that is qualified to do business in the State of Indiana as "E-Fine Motor USA, Inc." The company is engaged in the manufacture, development, testing and modification of autoparts. The petitioner seeks to temporarily employ the beneficiary as the manager of its research, development and modification department. The director denied the petition based on two independent and alternative grounds. The director concluded that the petitioner failed to establish: (1) that the U.S. company will employ the beneficiary in a primarily managerial or executive capacity; or (2) that the foreign entity has employed the beneficiary in a primarily managerial or executive capacity. The petitioner subsequently filed an appeal. The director declined to treat the appeal as a motion and forwarded the
  • 82. To obtain a pdf version of this document, e-mail: joseph.whalen774@gmail.com Page 82 AAO Non-Precedent L-Intracompany Transferee Decisions of 2012 Link to Decision Result, Excerpts, or Commentary May162012_01D7101.pdf appeal to the AAO for review. On appeal, counsel objects to the director's findings and asserts that the petitioner established that the beneficiary has been and would be employed in a managerial capacity. Counsel submits a brief and additional evidence in support of the appeal. FN1 _________ FN1 Upon preliminary review of the appeal, the AAO reviewed corporate records held by the State of Indiana and learned that the U. S. entity's corporate status was "revoked." The AAO issued a notice to the petitioner to advise it of this information on February 8, 2012, pursuant to 8 C.F.R. § 103.2(b)(16)(i). The petitioner submitted a timely response which included a Certificate of Reinstatement issued by the Illinois Secretary of State on February 27, 2012, and copies of the company's IRS Forms l120-F, U.S. Income Tax Return of a Foreign Corporation, for the years 2009 through 2011. The petitioner has provided sufficient evidence to demonstrate that the U.S. entity continues to do business as a qualifying organization in the United States pursuant to 8 C.F.R. § 214.2(l)(1)(ii)(G). APPEAL DISMISSED [L1-A] The petitioner, a California corporation, is a provider of and consulting services. It states that it is the parent company of [REDACTED]. It seeks to employ the
  • 83. To obtain a pdf version of this document, e-mail: joseph.whalen774@gmail.com Page 83 AAO Non-Precedent L-Intracompany Transferee Decisions of 2012 Link to Decision Result, Excerpts, or Commentary beneficiary in the position of Business Development Manager for a period of period of two years. The director denied the petition after concluding that the petitioner would not employ the beneficiary in the United States in a primarily managerial or executive capacity. In denying the petition, the director observed that all of the beneficiary's subordinate employees are located outside the United States and concluded that he would not be relieved from performing non-qualifying duties associated with his assigned business development activities. The petitioner subsequently filed an appeal. The director declined to treat the appeal as a motion and forwarded the appeal to the AAO for review. On appeal, the petitioner indicates that the beneficiary's subordinate team in India does in fact provide support to its U.S. parent company's operations and will continue to do so. Counsel emphasizes that the beneficiary currently manages the U.S. business development support function from India and will continue to do so in the United States with the assistance of his India-based team. Counsel submits a brief in support of the appeal. * * * * * The AAO notes that, while the petitioner initially indicated that the foreign and U.S. positions are identical, the petitioner
  • 84. To obtain a pdf version of this document, e-mail: joseph.whalen774@gmail.com Page 84 AAO Non-Precedent L-Intracompany Transferee Decisions of 2012 Link to Decision Result, Excerpts, or Commentary May162012_02D7101.pdf provided a different description and breakdown of the beneficiary's foreign duties in response to the RFE. Overall, the petitioner stated that the beneficiary currently allocates 80 percent of his time to business development, including managing US sales, lead generation, and current client communications. The petitioner indicated that the beneficiary currently spends 20 percent of his time managing U.S. resource management and recruiting support. APPEAL DISMISSED AS MOOT [L1-A] The petitioner, a Nevada corporation, operates a restaurant. It seeks to extend the beneficiary's L-I A status so that he may continue to serve in the position of general manager. The petitioner initially approved the petition and granted the requested extension of the beneficiary‟s status. The director subsequently issued a notice of intent to revoke, and ultimately revoked the petition approval based on a determination that the petitioner failed to establish that the beneficiary has been or would be employed in the United States in a qualifying managerial or executive capacity, or that he was in compliance with the terms and conditions of his L-1A employment. The petitioner filed a timely appeal.
  • 85. To obtain a pdf version of this document, e-mail: joseph.whalen774@gmail.com Page 85 AAO Non-Precedent L-Intracompany Transferee Decisions of 2012 Link to Decision Result, Excerpts, or Commentary May162012_03D7101.pdf The AAO conducts appellate review on a de novo basis. See Soltane v. DOJ, 381 F.3d 143, 145 (3d Cir. 2004). Pursuant to 8 C.F.R. § 103.2(b)(l6)(i), this office notified the petitioner on March 19, 2012 that, according to the AAO's search of State of Nevada corporate records and business registrations, the petitioner's corporate status is "dissolved."…… * * * * * The dissolution of its corporate status effectively terminates the employer's business. Where there is no active and legal U.S. entity, no legitimate job offer exists, and the request that a foreign worker be allowed to fill the position offered in the petition has become moot. SUMMARILY DISMISSED [L1-A] The petitioner was incorporated under the laws of the State of Florida in 2004 and is engaged in the operation of child care and development center. It claims to be an affiliate of [REDACTED] located in Venezuela. The petitioner seeks to employ the beneficiary in the position of "Director Child Care Center and Preschool Facility" for a period of three years. The director denied the petition on April 26, 2010 based on a conclusion that the petitioner failed to establish that it would employ the beneficiary in a primarily managerial or executive capacity.
  • 86. To obtain a pdf version of this document, e-mail: joseph.whalen774@gmail.com Page 86 AAO Non-Precedent L-Intracompany Transferee Decisions of 2012 Link to Decision Result, Excerpts, or Commentary May172012_02D7101.pdf The petitioner subsequently filed an appeal on May 27, 2010. The director declined to treat the appeal as a motion and forwarded the appeal to the AAO for review. On the Form I-290B, Notice of Appeal or Motion, the petitioner asserts that the director's decision is "arbitrary, capricious and an abuse of discretion," that it "deliberately misspells words, omits words and is without discernible meaning," that it "relies on evidence which does not exist and is not in the record," and that it "falsely claims" that the beneficiary will not perform primarily qualifying duties. The petitioner indicated on the Form I- 290B that it would submit a brief and/or additional evidence to the AAO within thirty days. As of this date, the AAO has not received the petitioner's brief or evidence and will consider the record complete. ______ Being pissy definitely does not help to make your case. APPEAL DISMISSED [L1-A] The petitioner, a Texas corporation, states that it is engaged in the retail sale of cellular phones and accessories. It claims to be an affiliate of Ideal Collections, located in Mumbai, India.
  • 87. To obtain a pdf version of this document, e-mail: joseph.whalen774@gmail.com Page 87 AAO Non-Precedent L-Intracompany Transferee Decisions of 2012 Link to Decision Result, Excerpts, or Commentary The beneficiary was previously granted L- 1A classification in order to open a new office in the United States and the petitioner now seeks to extend his status for two additional years so that he may continue to serve in the position of president and chief executive officer. The director denied the petition, concluding that the petitioner failed to establish that it will employ the beneficiary in a managerial or executive capacity. On appeal, counsel asserts that the beneficiary manages the overall U.S. organization including responsibility for supervising subordinate professional and managerial employees, and managing several essential functions. Counsel emphasizes that the U.S. company has achieved substantial growth since the beneficiary assumed the position of president in 2009. Counsel submits a brief and additional evidence in support of the appeal. * * * * * If the “company” is supposed to sell cellular products and services, why is the vice president working in a gas station/convenience store? Gross inconsistencies abound as to the nature of the business, income, staffing levels, and payroll among other things.
  • 88. To obtain a pdf version of this document, e-mail: joseph.whalen774@gmail.com Page 88 AAO Non-Precedent L-Intracompany Transferee Decisions of 2012 Link to Decision Result, Excerpts, or Commentary May222012_01D7101.pdf May222012_02D7101.pdf APPEAL DISMISSED [L1-A] The petitioner, a [REDACTED] states that it operates a flower import and distribution business known as [REDACTED]. It claims to be an affiliate of [REDACTED], located in Mexico. The beneficiary was previously granted L-1A status for a period of one year to open a new office in the United States, and the petitioner now seeks to extend his status for three additional years so that he may continue to serve in the position of chief executive officer. The director denied the petition concluding that the petitioner failed to establish that the beneficiary will be employed in the United States in a primarily managerial or executive capacity. Specifically, the director determined that the petitioner failed to establish that the new U.S. office, which claimed two employees at the time of filing, had grown to the point where it can support a managerial or executive position. APPEAL DISMISSED [L1-A] The petitioner, a Washington limited liability company established in 2009, intends to provide professional financial and business management services. It
  • 89. To obtain a pdf version of this document, e-mail: joseph.whalen774@gmail.com Page 89 AAO Non-Precedent L-Intracompany Transferee Decisions of 2012 Link to Decision Result, Excerpts, or Commentary May222012_04D7101.pdf May302012_01D7101.pdf claims to be an affiliate of Conseils et Gestion d'Entreprises, located in Ivory Coast. The petitioner seeks to employ the beneficiary as the president of its new office in the United States for a period of three years. (New Offices may only be approved for one-year). he director denied the petition based on a finding that the petitioner failed to establish: (1) that it secured sufficient physical premises to house the new office; (2) that the new office would support the beneficiary in a primarily managerial or executive position within one year of approval of the petition; and (3) that the petitioner has a qualifying relationship with the foreign entity. Misfiled “U” nonimmigrant visa petition (I-918) Appeal which was Rejected as Untimelu but the case was remanded to the Director to consider as a Motion. APPEAL DISMISSED [L1-A] The petitioner, a New York corporation established in November 2009, states that it intends to engage in the wholesale trade of refurbished desktop and notebook computers and electronics. It claims to be an affiliate of [REDACTED]. The petitioner seeks to employ the beneficiary as the president and operations manager
  • 90. To obtain a pdf version of this document, e-mail: joseph.whalen774@gmail.com Page 90 AAO Non-Precedent L-Intracompany Transferee Decisions of 2012 Link to Decision Result, Excerpts, or Commentary of its new office in the United States for a period of one year. The director denied the petition concluding that the petitioner failed to establish that the U.S. company had secured sufficient physical premises to house the new office. * * * * * The petitioner filed the Form 1-129, Petition for a Nonimmigrant Worker, on February 11, 2010. Evidence of the physical premises secured for the new office is required initial evidence for a petition filed pursuant to 8 C.F.R. § 214.2(l)(3)(v). Therefore, the critical facts to be examined are those that were in existence at the time of filing the petition. It is a long-established rule in visa petition proceedings that a petitioner must establish eligibility as of the time of filing. A visa petition may not be approved based on speculation of future eligibility or after the petitioner or beneficiary becomes eligible under a new set of facts. See Matter of Michelin Tire Corp., 17 I&N Dec. 248 (Reg. Comm'r. 1978); Matter of Katigbak, 14 I&N Dec. 45, 49 (Comm'r1971); Matter of lzummi, 22 I&N Dec. 169, 176 (Assoc. Comm'r. 1998). On the Form 1-129, the petitioner indicated its address as [REDACTED]. The petitioner's initial evidence included a lease agreement between the petitioning company and [REDACTED], who is
  • 91. To obtain a pdf version of this document, e-mail: joseph.whalen774@gmail.com Page 91 AAO Non-Precedent L-Intracompany Transferee Decisions of 2012 Link to Decision Result, Excerpts, or Commentary identified as the owner of the property. The lease agreement does not specify the size or portion of the premises leased to the petitioner. The lease agreement indicates that the parties agreed to a one-year term lease contains the following provision: 4. USE OF PREMISES. The Premises shall be used and occupied by Tenant as a private dwelling, and no part of the Premises shall be used at any time during the term of this Agreement by Tenant for the purpose of carrying on any business, profession, or trade of any kind, or for the purpose other than as a private dwelling. Tenant may allow no more than ___ additional individuals, other than transient relatives and friends who are guests of Tenant, to use or occupy the Premises without first obtaining Landlord's written content to such use. Tenants shall comply with any and all laws, ordinances, rules and orders of any and all governmental or quasi-governmental authorities affecting the cleanliness, use, occupancy and reservation of the Premises. The petitioner indicated in its accompanying letter dated February 1, 2010 that it will "carry out the negotiation, distribution, storage,
  • 92. To obtain a pdf version of this document, e-mail: joseph.whalen774@gmail.com Page 92 AAO Non-Precedent L-Intracompany Transferee Decisions of 2012 Link to Decision Result, Excerpts, or Commentary marketing and sale of refurbished computers and imported digital and electronic products" from its newly- secured New York office. The director issued a request for additional evidence (RFE) on March 17, 2010. The director observed that the petitioner's lease agreement is for premises that are to be used only as a private dwelling. The director requested that the petitioner provide evidence to establish that it has secured physical premises to house the new office. The director further noted that the petitioner did not establish that it had secured a warehouse or shipping and receiving facilities, and requested additional evidence that the petitioner has secured physical premises suitable for the conduct of international trade. In response, the petitioner submitted an affidavit from [REDACTED], the beneficiary's brother, who indicates that he owns the premises at [REDACTED] which he describes as a three-bedroom single-family home with a basement, that his family lives on the two main floors of the house, while "the finished basement occupies approximately an additional 700 square feet sufficient to operate [the petitioner's] proposed operations." He states that he agreed to lease the basement of his house to his brother's company "as office space in the beginning until they can secure their own premises."
  • 93. To obtain a pdf version of this document, e-mail: joseph.whalen774@gmail.com Page 93 AAO Non-Precedent L-Intracompany Transferee Decisions of 2012 Link to Decision Result, Excerpts, or Commentary May302012_02D7101.pdf May302012_03D7101.pdf The petitioner also re-submitted a copy of the lease agreement. ________ LESSONED LEARNED: International corporate executives and manager are not convincing when working out of their brother’s basement. APPEAL DISMISSED [L1-A] The petitioner, a New York corporation, states that it owns a majority interest in [REDACTED], which operates a retail grocery store. The petitioner claims to be a subsidiary of [REDACTED], located in India. The beneficiary was previously granted L-1A classification in order to open a new office in the United States and the petitioner now seeks to extend his status for three additional years. The director denied the petition, concluding that the petitioner failed to establish that it will employ the beneficiary in a managerial or executive capacity. APPEAL DISMISSED AS MOOT [L1-A] A review of the records of U.S. Citizenship and Immigration Services (USCIS) indicates that the beneficiary has adjusted status to that of a U.S. permanent resident as of August 31, 2010. While the petitioner has not withdrawn the appeal
  • 94. To obtain a pdf version of this document, e-mail: joseph.whalen774@gmail.com Page 94 AAO Non-Precedent L-Intracompany Transferee Decisions of 2012 Link to Decision Result, Excerpts, or Commentary May302012_04D7101.pdf in this proceeding, it would appear that the beneficiary is presently a lawful permanent resident and the issues in this proceeding are moot. Therefore, this appeal is dismissed. APPEAL DISMISSED [L1-A] The petitioner, a California corporation, states that it distributes and exports decoration materials. It claims to be a subsidiary 0f [REDACTED], located in Hong Kong. The beneficiary was previously granted one year in L-1A status to open a new office in the United States and the petitioner now seeks to extend his status for three additional years. The director denied the petition, concluding that the petitioner failed to establish that it will employ the beneficiary in a managerial or executive capacity. The petitioner subsequently filed an appeal. The director declined to treat the appeal as a motion and forwarded the appeal to the AAO for review. On appeal, counsel for the petitioner asserts that "the Service erred in simply focusing on the past one year of performance of the company and thus the one year of work of the beneficiary ... and failed to also focus on the previous two years of the company and of [the beneficiary] as required by law." Counsel further contends that, as
  • 95. To obtain a pdf version of this document, e-mail: joseph.whalen774@gmail.com Page 95 AAO Non-Precedent L-Intracompany Transferee Decisions of 2012 Link to Decision Result, Excerpts, or Commentary Jun042012_01D7101.pdf U.S. Citizenship and Immigration Services (USCIS) previously approved an L-1A petition filed on behalf of the beneficiary and granted him L-1A status for one year, "it would be arbitrary and capricious on the part of the Service to now make a different finding based on the fact that [the petitioner] did what it started to do under approval of the Service." Counsel submits a brief, but no additional evidence, in support of the appeal. ________ More proof that pissy does not prevail. APPEAL DISMISSED AS MOOT [L1-A] The petitioner, a New York corporation, intends to operate as Chinese-language media provider. It seeks to transfer the beneficiary from its Chinese parent company for a period of one-year to serve as chief executive officer of the new office in the United States. The director denied the petition on April 15, 2010 based on a conclusion that the petitioner failed to establish that it had secured sufficient physical premises to house the new United States office. The petitioner filed a timely appeal on May 14, 2010. A review of the records of U.S. Citizenship and Immigration Services (USCIS) indicates that, subsequent to the denial of
  • 96. To obtain a pdf version of this document, e-mail: joseph.whalen774@gmail.com Page 96 AAO Non-Precedent L-Intracompany Transferee Decisions of 2012 Link to Decision Result, Excerpts, or Commentary Jul022012_01D7101.pdf the petition, the petitioner filed a new Form 1-129, Petition for a Nonimmigrant Worker, on May 3, 2010 [REDACTED]. USCIS approved the petition and granted the beneficiary L-1A status from May 13, 2010 through May 12, 2011. USCIS subsequently approved a petition to extend the beneficiary's status through May 12, 2013 [REDACTED]. APPEAL DISMISSED [L1-A] The petitioner, a California corporation, states that it operates a natural herbs processing, extractions, nutrients, and food supplements import business. It claims to be a subsidiary of [REDACTED]. The petitioner is seeking initial employment for the beneficiary in L-1A status for a period of three years. The director denied the petition, concluding that the petitioner failed to establish that the beneficiary will be employed in the United States in a primarily managerial or executive capacity. The petitioner subsequently filed an appeal. The director declined to treat the appeal as a motion and forwarded the appeal to the AAO for review. On appeal, counsel for the petitioner asserts that the evidence of record establishes that all of the beneficiary‟s job duties are executive and managerial in nature. Counsel
  • 97. To obtain a pdf version of this document, e-mail: joseph.whalen774@gmail.com Page 97 AAO Non-Precedent L-Intracompany Transferee Decisions of 2012 Link to Decision Result, Excerpts, or Commentary Jul022012_02D7101.pdf submits a brief and additional evidence in support of the appeal. APPEAL SUSTAINED [L1-A] The petitioner was formed as a corporation under the laws of the State of Delaware in 2005, and is an aircraft leasing business. It claims to be a subsidiary of [REDACTED]. The petitioner is seeking L-1A status for the beneficiary as President for an initial period of three years. The director denied the petition, concluding that the petitioner failed to establish that the beneficiary would be employed in the United States in a primarily managerial or executive capacity. The petitioner subsequently filed an appeal. The director declined to treat the appeal as a motion and forwarded the appeal to the AAO. On appeal, counsel asserts that the evidence of record is sufficient to satisfy the petitioner's burden of proof and establishes that the beneficiary is, and will be, employed in the United States in a managerial capacity. * * * * * The petitioner stated the beneficiary will be moving his base of operations to their office in [REDACTED]. The beneficiary has served as the worldwide operations Chief Executive Officer since September
  • 98. To obtain a pdf version of this document, e-mail: joseph.whalen774@gmail.com Page 98 AAO Non-Precedent L-Intracompany Transferee Decisions of 2012 Link to Decision Result, Excerpts, or Commentary of 2000. The beneficiary's job duties in the United States will be "substantially similar to the job duties he performs in South Africa." The beneficiary's stated job duties included managing the daily operations; recruitment and training of staff; day-to-day cash flow management; planning and implementing policies, objectives, and activities to increase productivity; directing development of new products and services company-wide; and developing new markets and soliciting new accounts. * * * * * III. Conclnsion Upon review, the petitioner's assertions are persuasive. The AAO finds sufficient evidence to establish that the beneficiary will be employed in a primarily managerial capacity. The director's determination appears to be based in part on the director's pre-conceived impression of what duties are typically performed by a President of an aircraft leasing business rather than on the evidence submitted by the petitioner. The director should not hold a petitioner to his undefined and unsupported view of the standard duties of an occupation in making a determination as to whether the beneficiary will be employed in a primarily managerial or executive capacity. The director should instead focus on applying the statute and regulations to the facts presented by the record of proceeding.
  • 99. To obtain a pdf version of this document, e-mail: joseph.whalen774@gmail.com Page 99 AAO Non-Precedent L-Intracompany Transferee Decisions of 2012 Link to Decision Result, Excerpts, or Commentary The evidence submitted establishes that the beneficiary supervises and controls the work of professional-level employees and possesses authority to recommend personnel actions for employees under his supervision. See sections 101(a)(44)(A)(ii) and (iii) of the Act. The AAO does not agree with the director that "the description of the beneficiary's duties is too broad and nonspecific to convey any understanding" of the beneficiary's duties. The record indicates that the beneficiary is responsible for the management of the United States office including four subordinate employees and is charged with overseeing new products and business development. The petitioner established a reasonable need for a managerial-level employee to oversee the United States operations. In addition, the beneficiary has managerial authority over five other managerial-level employees at offices abroad to carry out the day-to-day tasks related to the functions of the petitioner. Finally, the AAO is satisfied that the beneficiary exercises discretion over the day-to-day operations of the petitioner as required by section 101(a) (44)(A)(iv) of the Act. While the beneficiary will undoubtedly be required to apply his technical expertise in carrying out his job duties and perform some administrative tasks, the petitioner has established by a preponderance of the evidence that the majority of the day-to-
  • 100. To obtain a pdf version of this document, e-mail: joseph.whalen774@gmail.com Page 100 AAO Non-Precedent L-Intracompany Transferee Decisions of 2012 Link to Decision Result, Excerpts, or Commentary Jul132012_01D7101.pdf Jul162012_01D7101.pdf day non-managerial tasks required to produce the products and provide services for the client are carried out by the beneficiary's subordinate staff. The petitioner need only establish that the beneficiary devotes more than half of his time to managerial duties. The petitioner has met that burden. APPEAL DISMISSED AS MOOT [L1-A] A review of the records of U.S. Citizenship and Immigration Services (USCIS) indicates that this beneficiary is also the beneficiary of an approved immigrant petition (Form 1-130) and has adjusted status to that of a conditional permanent resident as of February 16, 20 II. While the petitioner has not withdrawn the appeal in this proceeding, it would appear that the beneficiary is presently a conditional permanent resident and the issues in this proceeding are moot. Therefore, this appeal is dismissed. MOTION GRANTED, BUT DIRECTOR’S DENIAL AFFIRMED [L1-A] DISCUSSION: The nonimmigrant visa petition was denied by the director, Vermont Service Center. The Administrative Appeals Office (AAO) summarily dismissed the subsequently filed appeal and affirmed the director's
  • 101. To obtain a pdf version of this document, e-mail: joseph.whalen774@gmail.com Page 101 AAO Non-Precedent L-Intracompany Transferee Decisions of 2012 Link to Decision Result, Excerpts, or Commentary decision to deny the petition. The matter is now before the AAO on a motion to reopen and a motion to reconsider. The matter will be reopened but the director's decision will be undisturbed. The petitioner filed this nonimmigrant petition seeking to employ the beneficiary as an L-1A nonimmigrant intracompany transferee pursuant to section 101(a)(15) (L) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1101(a)(15)(L). The petitioner states that it is "engaged in commercial investments in chain of fast food restaurants." The petitioner seeks to employ the beneficiary as its president - CEO. The beneficiary was initially granted a one-year period of stay in L-1A status to open a new office in the United States. The petitioner now seeks to extend the beneficiary's stay in order to continue to fill the position of President-CEO. On December 19, 2011, the director denied the petition, concluding that the petitioner failed to establish that the beneficiary will be employed in a position that is primarily executive or managerial in nature. On January 23, 2012, counsel for the petitioner submitted the Form I-290B to appeal the denial of the underlying petition. Counsel marked the box at part two of the Form I-290B to indicate that a brief and/or evidence would be sent within 30 days. No brief or additional
  • 102. To obtain a pdf version of this document, e-mail: joseph.whalen774@gmail.com Page 102 AAO Non-Precedent L-Intracompany Transferee Decisions of 2012 Link to Decision Result, Excerpts, or Commentary Jul192012_01D7101.pdf evidence was received by the AAO, thus the AAO summarily dismissed the appeal on April 11, 2012. (See above, on p. 59.) On May 4, 2012, counsel filed a Form I- 290B and identified it as a motion to reopen and a motion to reconsider. On motion, counsel contends that he filed the appeal on January 23, 2012 and requested 30 days to submit a brief and/or additional documentation. On appeal, counsel presents evidence that the appeal was properly received by the Phoenix lockbox by February 21, 2012. This evidence establishes that the appeal brief was submitted in the 30-day time period. The AAO will withdraw its previous decision and review the merits of the appeal. MOTION DISMISSED [L1-A] The petitioner, a Texas corporation, states that it operates an industrial precision machine shop. It claims to be an affiliate of Maquinados de Precision y Representaciones S.A. de C.Y. located in Ciudad Juarez, Mexico. The petitioner is seeking initial employment for the beneficiary in L-1A status for a period of three years to serve in the position of General Manager. On November 7, 2008 the director denied the petition finding that the record was insufficient to establish that the
  • 103. To obtain a pdf version of this document, e-mail: joseph.whalen774@gmail.com Page 103 AAO Non-Precedent L-Intracompany Transferee Decisions of 2012 Link to Decision Result, Excerpts, or Commentary Jul192012_02D7101.pdf beneficiary would be employed primarily in a qualifying managerial or executive capacity. In a decision dated December 8, 20092, The AAO dismissed the appeal. The AAO concurred with the director's finding that the record was insufficient to establish that the beneficiary would be employed in a qualifying managerial or executive capacity. On motion, counsel requests that the AAO "reconsider its decision" based on counsel's contention that the record supports a finding that the beneficiary will be acting in an executive capacity, and, "in light of the Service's policy to encourage creation of jobs for United States workers." APPEAL DISMISSED [L1-A] …The petitioner, a New York corporation, states that it operates a chemical manufacturing business for flavors and fragrance. It claims to be an affiliate of [REDACTED], located in Demerara, Guyana. The petitioner is seeking initial employment for the beneficiary in L-1A status for a period of three years to serve in the position of Plant/Warehouse Operations Manager. The director denied the petition, concluding that the petitioner failed to 2 The prior Dismissal is not posted online.
  • 104. To obtain a pdf version of this document, e-mail: joseph.whalen774@gmail.com Page 104 AAO Non-Precedent L-Intracompany Transferee Decisions of 2012 Link to Decision Result, Excerpts, or Commentary Jul192012_03D7101.pdf establish that the beneficiary will be employed in the United States in a primarily managerial or executive capacity. ________ A “real” executive is not likely to perform routine maintenance on equipment used in manufacturing! APPEAL DISMISSED [L1-A] … The petitioner, a California corporation, states that it operates a Kungfu and Chinese education business. It claims to be an affiliate of [REDACTED] and [REDACTED] located in Shandong, China. The petitioner is requesting L-1A status for the beneficiary so that he may serve in the position of Director of Education. The director denied the petition, concluding that the petitioner failed to establish that the petitioner has a qualifying relationship with the overseas employer. The petitioner subsequently filed an appeal. The director declined to treat the appeal as a motion and forwarded the appeal to the AAO for review. On appeal, counsel for the petitioner asserts that the director made incorrect findings of fact and that the record supports the conclusion that a qualifying relationship exists between the petitioner and the
  • 105. To obtain a pdf version of this document, e-mail: joseph.whalen774@gmail.com Page 105 AAO Non-Precedent L-Intracompany Transferee Decisions of 2012 Link to Decision Result, Excerpts, or Commentary Jul192012_04D7101.pdf overseas employer. Counsel submits a brief and additional evidence in support of the appeal. APPEAL DISMISSED [L1-A] …The petitioner, a California corporation, states that it operates a furniture distribution business. It claims to be a subsidiary of [REDACTED], located in Guangdong, China. The petitioner is requesting L-1A status for the beneficiary so that she may serve in the position of Deputy General Manager for a period of two years. The director denied the petition, concluding that the petitioner failed to establish that the beneficiary will be employed in the United States in a primarily managerial or executive capacity. The petitioner subsequently filed an appeal. The director declined to treat the appeal as a motion and forwarded the appeal to the AAO for review. On appeal, the petitioner asserts that the beneficiary would be working in a managerial capacity. The petitioner submits a brief and additional evidence in support of the appeal. * * * * * The director denied the petitioner on March 4, 2010. The director found that the petitioner failed to establish that the
  • 106. To obtain a pdf version of this document, e-mail: joseph.whalen774@gmail.com Page 106 AAO Non-Precedent L-Intracompany Transferee Decisions of 2012 Link to Decision Result, Excerpts, or Commentary Jul202012_01D7101.pdf beneficiary will be employed in a managerial or executive capacity. Specifically, the director determined that a "preponderance of the beneficiary's duties have been and will be directly providing the services of the organization and supervising non-professional employees." MOTION DISMISSED [L1-A] The director denied the petition on March 4, 2009, concluding that the petitioner has not established that the beneficiary would be employed in a primarily executive or managerial capacity. The petitioner subsequently filed an appeal. On July 8, 20103, the AAO dismissed the appeal also concluding that the beneficiary would not be employed in a primarily executive or managerial capacity. A review of U.S. Citizenship and Immigration Services (USCIS) records indicates that the beneficiary of this petition was also the beneficiary of an I- 130 petition, and that she has adjusted status to that of a U.S. permanent resident as of November 3, 2010. While the petitioner has not withdrawn the appeal in this proceeding, it would appear that the beneficiary is presently a lawful permanent resident and the issues in this proceeding are moot. Therefore, this appeal will be dismissed. 3 Prior Decision is not posted online.
  • 107. To obtain a pdf version of this document, e-mail: joseph.whalen774@gmail.com Page 107 AAO Non-Precedent L-Intracompany Transferee Decisions of 2012 Link to Decision Result, Excerpts, or Commentary Jul202012_02D7101.pdf APPEAL DISMISSED [L1-A] …The petitioner, a Texas corporation states that it operates a convenience store. It claims to be a branch office of the [REDACTED] located in Amman, Jordan. The petitioner is seeking to extend the employment of the beneficiary in L1-A status for a period of three years to serve in the position of Executive Manager. The director denied the petition, concluding that the petitioner failed to establish that the beneficiary will be employed in the United States in a primarily managerial or executive capacity. The petitioner subsequently filed an appeal. The director declined to treat the appeal as a motion and forwarded the appeal to the AAO for review. On appeal, counsel for the petitioner asserts that the evidence of record establishes that all of the beneficiary's job duties are executive in nature. Counsel submits a brief and additional evidence in support of the appeal. * * * * * The director issued a request for additional evidence ("RFE") on January 29, 2010 in which he instructed the petitioner to submit, inter alia, the following: (1) an explanation for why the petitioner marked the petition as a
  • 108. To obtain a pdf version of this document, e-mail: joseph.whalen774@gmail.com Page 108 AAO Non-Precedent L-Intracompany Transferee Decisions of 2012 Link to Decision Result, Excerpts, or Commentary Jul232012_01D7101.pdf "New Office"; (2) a copy of the IRS Form 941 quarterly return for the fourth quarter of 2009; (3) a breakdown of the number of hours devoted to each of the beneficiary's proposed duties on a weekly basis; and (4) a list of the United States employees with title, position description, and a breakdown of number of hours devoted to each duty. In a response dated March 11, 2010, counsel for the petitioner explained that the petition was marked as a "New Office" due to the fact that the petitioner "recently began their new operation of engaging in the wholesale and retail/ import and export business" as mentioned by the petitioner in the initial filing. The petitioner provided a copy of the IRS Form 941 quarterly return for the fourth quarter of 2009 for "the operation of [REDACTED] the new business operation has just begun operations and has not yet filed a quarterly tax return." APPEAL DISMISSED [L1-A] DISCUSSION: The Director, Vermont Service Center, denied the noninnnigrant visa petition on September 15, 2011. On October 14, 2011, counsel filed a form I- 290B, Notice of Appeal or Motion, with the AAO. Counsel selected Part 2, Box B, indicating that a brief would be submitted to the AAO within 30 days. On March 21, 2012, the AAO dismissed the appeal after
  • 109. To obtain a pdf version of this document, e-mail: joseph.whalen774@gmail.com Page 109 AAO Non-Precedent L-Intracompany Transferee Decisions of 2012 Link to Decision Result, Excerpts, or Commentary Jul232012_02D7101.pdf erroneously determining that no brief was submitted by the petitioner. Upon review, a brief was timely filed, and the matter will be reopened on service motion. The matter is now before the Administrative Appeals Office (AAO) on appeal. The AAO will dismiss the appeal. The petitioner filed this nonimmigrant petition seeking to extend the beneficiary's employment as a nonimmigrant intracompany transferee pursuant to section 101(a)(15)(L) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1101 (a)(15)(L). The petitioner, a Texas corporation states that it operates an investment business. It claims to be a subsidiary of [REDACTED] located in Ahmedabad, India. The petitioner has employed the beneficiary in L-1A status since December 2007 and now seeks to extend his status so that he may continue to serve in the position of Director/Manager of Operations. The director denied the petition, concluding that the petitioner failed to establish that the beneficiary will be employed in the United States in a primarily managerial or executive capacity. APPEAL DISMISSED [L1-A] The petitioner, a Texas corporation states that it operates an industrial precision
  • 110. To obtain a pdf version of this document, e-mail: joseph.whalen774@gmail.com Page 110 AAO Non-Precedent L-Intracompany Transferee Decisions of 2012 Link to Decision Result, Excerpts, or Commentary Jul232012_03D7101.pdf machine shop. It claims to be an affiliate Of [REDACTED], located in Ciudad Juarez, Mexico. The petitioner is seeking initial employment for the beneficiary in L-1A status for a period of three years to serve in the position of General Manager. The director denied the petition, concluding that the petitioner failed to establish that the beneficiary will be employed in the United States in a primarily managerial or executive capacity. APPEAL DISMISSED [L1-A] …The petitioner filed this nonimmigrant petition seeking approval of the beneficiary's employment as a nonimmigrant intracompany transferee pursuant to section 101(a)(15)(L) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1101 (a)(15)(L). The petitioner, a Florida corporation states that it operates a property management business. It claims to be an affiliate of [REDACTED], located in London, U.K. The petitioner seeks to extend the beneficiary's stay so that she may continue to serve as the General Operations Manager for an additional two years. The director denied the petition, concluding that the record does not establish that the beneficiary has been and will be employed in an executive or managerial position.
  • 111. To obtain a pdf version of this document, e-mail: joseph.whalen774@gmail.com Page 111 AAO Non-Precedent L-Intracompany Transferee Decisions of 2012 Link to Decision Result, Excerpts, or Commentary Jul242012_01D7101.pdf SUMMARILY DISMISSED [L1-A] The petitioner filed this nonimmigrant petition seeking to extend the beneficiary's employment as an L-1A nonimmigrant intracompany transferee pursuant to section 101(a)(15)(L) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1101(a)(15)(L). The petitioner, a California corporation, provides software and consulting services. It claims to be a subsidiary of ArqCOM S.A. de C.V., located in Tijuana, B.C. Mexico. The petitioner is seeking to employ the beneficiary as its Director/President for an additional period of one year. The director denied the petition on February 10, 2010, concluding that the petitioner failed to establish that the beneficiary would be employed in a primarily managerial or executive capacity. In denying the petition, the director observed that the organizational structure provided supports a conclusion that the beneficiary would be assisting with non-supervisory duties. Additionally the director found that the petitioner's description of the beneficiary's daily job duties is more indicative of an employee who is performing the necessary tasks to provide a service or produce a product.
  • 112. To obtain a pdf version of this document, e-mail: joseph.whalen774@gmail.com Page 112 AAO Non-Precedent L-Intracompany Transferee Decisions of 2012 Link to Decision Result, Excerpts, or Commentary Jul242012_02D7101.pdf Jul262012_01D7101.pdf APPEAL DISMISSED AS MOOT [L1-B] The petitioner filed the nonimmigrant petition to classify the beneficiary as an intracompany transferee pursuant to section 101(a)(15)(L) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1101(a)(15)(L). The petitioner, a Delaware corporation, operates a software applications and development firm. It seeks to transfer the beneficiary from its parent company for a period of two years to serve as a Systems Analyst at a client site in Kettering, OR. The director denied the petition on June 28, 2010 based on a conclusion that the petitioner failed to establish that the placement of the beneficiary at the worksite of the unaffiliated employer is not merely labor for hire. The petitioner filed a timely appeal on July 26, 2010. A review of the records of U.S. Citizenship and Immigration Services (USCIS) indicates that, subsequent to the denial of the petition, the petitioner filed a new Form 1-129, Petition for a Nonimmigrant Worker, on August 25, 2010 [REDACTED]. USCIS approved the petition and granted the beneficiary L-l B status from December 3, 2010 to December 30, 2012. MOTION DISMISSED [L1-A]
  • 113. To obtain a pdf version of this document, e-mail: joseph.whalen774@gmail.com Page 113 AAO Non-Precedent L-Intracompany Transferee Decisions of 2012 Link to Decision Result, Excerpts, or Commentary The petitioner, a California corporation, operates an import/export business for spices, foodstuffs, jewelry, and dinner plates. It seeks to extend the beneficiary's stay in L-1 status for an additional period of two years so that he may continue to serve as Managing Director. The director denied the petition on May 1, 2002, finding that the petitioner failed to establish that the beneficiary will be employed in a primarily managerial or executive position. The petitioner appealed the director's decision on May 31, 2002. On May 18, 20044, the AAO dismissed the appeal based on two grounds: (1) the petitioner failed to establish that the beneficiary's duties would be primarily managerial or executive, and (2) the record does not contain sufficient evidence that the petitioner has been engaged in the regular, systematic, and continuous provision of goods and/or services in the United States and abroad. In response to the AAO's May 18, 2004 decision, the petitioner's new counsel filed an untimely motion to reopen on October 15, 2009, over five years, four months, and 27 days after the decision was issued. In defense of the petitioner's filing of an untimely motion, counsel raised the claim of ineffective assistance 4 AAO Decisions posted online begin with 2005.
  • 114. To obtain a pdf version of this document, e-mail: joseph.whalen774@gmail.com Page 114 AAO Non-Precedent L-Intracompany Transferee Decisions of 2012 Link to Decision Result, Excerpts, or Commentary Jul262012_02D7101.pdf Jul272012_01D7101.pdf of counsel. Counsel does not address the merits of the director's or the AAO's decisions. _________ SEE: http://www.slideshare.net/BigJoe5/does- lozada-belong-in-the-immigration-benefits-context SEE: http://www.slideshare.net/BigJoe5/it-seems- that-lozada-does-not-belong-in-the-immigration- benefits-context APPEAL DISMISSED [L1-A] The petitioner, a Delaware corporation, states that it operates a payment and online financial management solutions firm. It claims to be an affiliate of [REDACTED], located in North Sydney, Australia. The petitioner is seeking initial employment for the beneficiary in L-1 A status for a period of three years as its Director for [REDACTED]. The director denied the petition, concluding that the petitioner failed to establish that the beneficiary will be employed in the United States in a primarily managerial or executive capacity. SUMMARILY DISMISSED [L1-A] The petitioner, a Georgia corporation, is engaged in real estate development. It
  • 115. To obtain a pdf version of this document, e-mail: joseph.whalen774@gmail.com Page 115 AAO Non-Precedent L-Intracompany Transferee Decisions of 2012 Link to Decision Result, Excerpts, or Commentary claims to be a branch of [REDACTED], located in Wuzhou City, China. The petitioner is seeking to employ the beneficiary as its Financial Director for a period of three years. The director denied the petition on October 6, 2009, concluding that the petitioner failed to establish that the beneficiary would be employed in a primarily managerial or executive capacity. In denying the petition, the director found that due to the size and nature of the business, and the lack of employees to perform non-qualifying duties, it could not be determined that the beneficiary will be coming to the United States to work in a managerial or executive capacity. The petitioner subsequently filed an appeal. The director declined to treat the appeal as a motion and forwarded the appeal to the AAO for review. The petitioner submits a brief and evidence in support of the appeal. * * * * * Upon review, the AAO concurs with the director's decision and affirms the denial of the petition. The petitioner has not identified an erroneous conclusion of law or statement of fact on the part of the director as a basis for the appeal. As a preliminary matter, the additional evidence submitted by the petitioner on appeal will not be considered in this
  • 116. To obtain a pdf version of this document, e-mail: joseph.whalen774@gmail.com Page 116 AAO Non-Precedent L-Intracompany Transferee Decisions of 2012 Link to Decision Result, Excerpts, or Commentary proceeding. The petitioner submits a copy of a contract dated May 18, 2009, prior to August 10, 2009, the filing date of the original Form 1-129. On August 18, 2009, the petitioner was put on notice of required evidence and given a reasonable opportunity to provide it for the record before the visa petition was adjudicated. Specifically, the director requested inter alia the following: "additional evidence to establish that the beneficiary will be employed in a(n) executive capacity in the United States firm," a comprehensive description of the beneficiary's proposed duties, and a list of United States employees identifying each by name and position title along with a complete position description for each of the United States employees. The petitioner failed to submit the requested evidence and now submits it on appeal. Counsel for the petitioner states that the contract provides evidence of "the obvious responsibilities of the beneficiary with regard to the contractor, it also contains exclusions which detail the beneficiary's duties and supervisory responsibilities with others." The AAO will not consider this evidence for any purpose as the petitioner had the opportunity to submit such evidence with the initial petition and in response to the request for evidence. See Matter of Soriano, 19 I&N Dec. 764 (BIA 1988); Matter of Obaigbena, 19 I&N Dec. 533 (BIA 1988). The appeal will be adjudicated based on the record of proceeding before the director.
  • 117. To obtain a pdf version of this document, e-mail: joseph.whalen774@gmail.com Page 117 AAO Non-Precedent L-Intracompany Transferee Decisions of 2012 Link to Decision Result, Excerpts, or Commentary Jul272012_02D7101.pdf APPEAL SUSTAINED [L1-A] …The petitioner, a wholesale and retail business for enamel-insulated wire, states that it is a subsidiary of the beneficiary's foreign employer, [REDACTED]. The petition was approved for a period of one year. On January 14, 2010, the director revoked the petition. The petitioner was previously given the opportunity to submit evidence to overcome the grounds of revocation, namely, that the company could provide no documentation or evidence that the beneficiary worked for the foreign employer. The director found that this evidence did not overcome the fact that the Director of Human Resources "would not be able to provide evidence of the beneficiary's employment with the foreign entity." The petitioner subsequently filed an appeal. The director declined to treat the appeal as a motion and forwarded the appeal to the AAO for review. On appeal, counsel asserts that the Director of Human Resources Department did not have the opportunity to submit appropriate evidence to the investigators. Counsel submits a brief and additional evidence in support of the appeal. * * * * * The sole issue in this matter is whether the beneficiary actually had the full time
  • 118. To obtain a pdf version of this document, e-mail: joseph.whalen774@gmail.com Page 118 AAO Non-Precedent L-Intracompany Transferee Decisions of 2012 Link to Decision Result, Excerpts, or Commentary employment abroad as claimed on the initial petition. The petitioner filed the nonimmigrant petition on November 28, 2009. In a letter dated November 30, 2009, addressed to the petitioner, the director stated that an investigation was conducted at the foreign parent company. The investigation showed that "the company could provide no documentation or evidence that [THE BENEFICIARY] works for the company or that her actual job title is sales manager." The investigation also showed that the beneficiary speaks no English, calling into question her ability to perform the job duties in the United States. The director requested evidence to overcome the grounds of revocation. A copy of the investigative report was attached. The petitioner responded in a letter dated March 15, 2010. The petitioner submitted the following evidence in response: (1) a statement of fact signed by the foreign company's Director of Human Resources department and co-signed by the Director of the finance department providing an account of the investigative visit, (2) a letter from the [REDACTED] and [REDACTED] of the company confirming the beneficiary's employment and position as director sales department; (3) a letter from the [REDACTED] of the foreign company explaining the details of the investigative visit; (4) an updated
  • 119. To obtain a pdf version of this document, e-mail: joseph.whalen774@gmail.com Page 119 AAO Non-Precedent L-Intracompany Transferee Decisions of 2012 Link to Decision Result, Excerpts, or Commentary position and salary verification for the beneficiary; (5) copies of employee salary records showing the beneficiary as an employee; (5)5 a copy of the beneficiary's employee I.D. card; (6) photos showing the beneficiary on the interior and exterior of the company premises; and (7) an affidavit from the petitioner's care-taker explaining the language skills needed at the United States office. On January 14, 2010, the director revoked the petition. After receiving the petitioner's response to the director's notice of intent to revoke, the director determined that the evidence provided did not overcome the fact that the Director of Human Resources Department for the foreign employer was unable to provide any documentation to the Assistant Regional Security Officer- Investigator showing the beneficiary was employed by the foreign entity. On appeal, counsel asserts that the director's decision was made in error because the director failed to take into account the fact that the investigators only requested to see the employment agreement even though the "human resources director correctly informed the investigators that the company does not sign such a document with any employees." Counsel claims that the 5 Misnumbered in original AAO Decision.
  • 120. To obtain a pdf version of this document, e-mail: joseph.whalen774@gmail.com Page 120 AAO Non-Precedent L-Intracompany Transferee Decisions of 2012 Link to Decision Result, Excerpts, or Commentary petitioner was not provided the opportunity to submit alternative evidence confirming the beneficiary's employment with the foreign company. In support of the appeal, counsel points to the statements of the Director of Human Resources and the president of the parent company previously submitted in response to the notice of intent to revoke. Both statements explain that the investigators requested to see the employment agreement between the foreign entity and the beneficiary. As stated by the president, the company officials "explained that when we hire departmental directors/lenders we do not use the method of signing an employment agreement with those who are hired." The statements do not detail any further requests by the investigators to see other evidence of the beneficiary's employment. Therefore, the petitioner asserts that the evidence submitted in response to the intent to revoke by the director was not previously considered by the investigators at the time of their visit to the foreign company. Upon review, the petitioner's assertions are persuasive. The AAO finds sufficient evidence to establish that the beneficiary was working for the foreign entity. It is incumbent upon the petitioner to resolve any inconsistencies in the record by independent objective evidence. Any
  • 121. To obtain a pdf version of this document, e-mail: joseph.whalen774@gmail.com Page 121 AAO Non-Precedent L-Intracompany Transferee Decisions of 2012 Link to Decision Result, Excerpts, or Commentary Jul272012_03D7101.pdf attempt to explain or reconcile such inconsistencies will not suffice unless the petitioner submits competent objective evidence pointing to where the truth lies. Matter of Ho, 19 I&N Dec. 582, 591- 92 (BIA 1988). Here, the petitioner has submitted sufficient independent objective evidence to resolve the inconsistencies stated by the director in his notice of revocation. In response to the notice of intent to revoke, and on appeal, the petitioner submitted an updated position and salary verification for the beneficiary, copies of employee salary records showing the beneficiary as an employee, a copy of the beneficiary's employee I.D. card, and photos showing the beneficiary at the company premises. As stated in the director's letter dated January 14, 2010, "users will concede that employment agreements are not always signed between employer and employees." The evidence submitted overcomes the grounds of revocation by establishing that the beneficiary works for the parent company and that her job title is Director of Sales Department. SUMMARILY DISMISSED [L1-A] ….. The petitioner, a New Jersey corporation, is self-described as a retail business. It claims to be an affiliate of
  • 122. To obtain a pdf version of this document, e-mail: joseph.whalen774@gmail.com Page 122 AAO Non-Precedent L-Intracompany Transferee Decisions of 2012 Link to Decision Result, Excerpts, or Commentary [REDACTED], located in Ahmedabad, India. The petitioner seeks initial approval of the beneficiary in L-1A status for a period of one year. The director denied the petition on April 20, 2010 concluding that the petitioner failed to establish that the beneficiary would be employed in a primarily managerial or executive capacity within one year of commencing operations. In denying the petition, the director observed that the record does not show that the beneficiary will function at a senior level within an organizational hierarchy, or, that he will manage a subordinate staff of professional, managerial, or supervisory personnel. Additionally, the director found that the financial statements provided by the petitioner do not evidence how the business can support a staff of nine employees and a general manager within one year. * * * * * Upon review, the AAO concurs with the director's decision and affirms the denial of the petition. The petitioner has not identified an erroneous conclusion of law or statement of fact on the part of the director as a basis for the appeal, but simply indicates that it will provide additional documentation which has yet to be submitted.
  • 123. To obtain a pdf version of this document, e-mail: joseph.whalen774@gmail.com Page 123 AAO Non-Precedent L-Intracompany Transferee Decisions of 2012 Link to Decision Result, Excerpts, or Commentary Jul272012_04D7101.pdf APPEAL REJECTED AS IMPROPERLY FILED [L1-A] The petitioner is an import/export firm. It claims to be an affiliate of [REDACTED], located in Wuxi Jiangsu, China. It seeks to employ the beneficiary permanently in the United States as its President-CEO for an additional period of one year. The director denied the petition finding that the record contained insufficient evidence to demonstrate that the beneficiary will be employed in a managerial or executive capacity. The Form I-290B appeal form was signed by [REDACTED], who also submitted a Form G-28, Notice of Entry of Appearance as Attorney or Accredited Representative entering his appearance in the matter before the AAO. [REDACTED] claimed to represent the petitioner as "an attorney and a member in good standing of the bar of the highest court(s) of the following States(s), possession(s), territory(ies), commonwealth(s), or the District of Columbia: "New Jersey Supreme Court." [REDACTED] further claimed that he is "not subject to any order of any court or administrative agency disbarring, suspending, enjoining, restraining, or otherwise restricting" him "in the practice of law." * * * * *
  • 124. To obtain a pdf version of this document, e-mail: joseph.whalen774@gmail.com Page 124 AAO Non-Precedent L-Intracompany Transferee Decisions of 2012 Link to Decision Result, Excerpts, or Commentary Jul272012_05D7101.pdf [REDACTED] is currently listed as "Admin Ineligible" on the list of disciplined attorneys in the State of New Jersey, available on the Internet at http://njcourts.judiciary.state.nj.us/ . An attorney in "Administratively Ineligible" status "is not currently authorized to practice law in New Jersey." As the appeal has been filed by an administratively ineligible attorney who is not in good standing of the bar of the State of New Jersey, the appeal has been filed by a person or entity not entitled to file it, and it must therefore be rejected. 8 C.F.R. § 103.3(a)(2)(v)(A)(1). SUMMARILY DISMISSED [L1-A] ….The petitioner, a Florida corporation, is self-described as a real estate investment firm. It claims to be a subsidiary of [REDACTED] located in Pereira, Columbia. The petitioner seeks initial approval of the beneficiary in L-I A status for a period of two years. The director denied the petition on April 5, 2010 concluding that the petitioner failed to establish both that the beneficiary would be employed in a primarily managerial or executive capacity and that the petitioner has secured sufficient physical premises to house the business. In denying the petition, the director observed that the
  • 125. To obtain a pdf version of this document, e-mail: joseph.whalen774@gmail.com Page 125 AAO Non-Precedent L-Intracompany Transferee Decisions of 2012 Link to Decision Result, Excerpts, or Commentary Jul272012_06D7101.pdf record contained conflicting information regarding the business location provided by the petitioner. Furthermore, the director found that the beneficiary would be engaged in the non-managerial day-to- day operations of the establishment. The petitioner subsequently filed an appeal. The director declined to treat the appeal as a motion and forwarded the appeal to the AAO for review. On appeal, the petitioner indicates on the Form I- 290B, Notice of Appeal or motion, that it "will be sending additional evidence to the AAO within 30 days" as evidence that "the beneficiary qualifies under section 101(a)(15)(L) of the Act." The petitioner filed the appeal on May 7, 2010. As of this date, no brief or additional evidence has been submitted, and the record will be considered complete. SUMMARILY DISMISSED [L1-A] ….The petitioner states that it operates an art auction house and gallery. The beneficiary was previously granted L-l A classification for a three-year period in order to serve as the petitioner's president. The petitioner requests a two- year extension of the beneficiary's status so that he may continue to serve in this position. The director denied the petition on August 5, 2010, based on a conclusion
  • 126. To obtain a pdf version of this document, e-mail: joseph.whalen774@gmail.com Page 126 AAO Non-Precedent L-Intracompany Transferee Decisions of 2012 Link to Decision Result, Excerpts, or Commentary Jul272012_07D7101.pdf that the petitioner failed to establish that it would employ the beneficiary in a primarily managerial or executive capacity under the extended petition. In denying the petition, the director observed that the beneficiary was the U.S. company's sole employee at the time of filing, and that the record shows that he has been and will be performing many aspects of the day-to-day operations of the business, rather than primarily performing qualifying managerial or executive duties. The petitioner subsequently filed an appeal. The director declined to treat the appeal as a motion and forwarded the appeal to the AAO for review. On the Form 1-290B, Notice of Appeal or Motion, the petitioner's representative states: "We humbly request an additional 30 days to cite the erroneous conclusion of law or fact in the decision to deny the petition." The representative indicated on the Form 1-290B that she would forward a brief and/or additional evidence to the AAO within 30 days. As of this date, no brief or evidence has been submitted and the record will be considered complete. APPEAL DISMISSED AS MOOT[L1-A] DISCUSSION: The Director, Vermont Service Center, denied the nonimmigrant visa petition. The petitioner subsequently
  • 127. To obtain a pdf version of this document, e-mail: joseph.whalen774@gmail.com Page 127 AAO Non-Precedent L-Intracompany Transferee Decisions of 2012 Link to Decision Result, Excerpts, or Commentary filed an appeal. The matter is now before the Administrative Appeals Office (AAO) on appeal. The petitioner filed this nonimmigrant petition seeking to extend the beneficiary's L-1A status pursuant to section 101(a)(15)(L) of the Immigration and Nationality Act (the Act), 8 US.C. § 1101(a)(15)(L), as an intracompany transferee employed in a managerial or executive capacity. The director denied the petition on June 22, 2010, concluding that the petitioner has not established that the beneficiary would be employed in a primarily executive or managerial capacity. The petitioner subsequently filed an appeal on July 26, 2010. A review of US. Citizenship and Immigration Services (USCIS) records indicates that the beneficiary of this petition was also the beneficiary of an I- 140 petition, and that he has adjusted status to that of a US. permanent resident as of April 12, 2011. While the petitioner has not withdrawn the appeal in this proceeding, it would appear that the beneficiary is presently a lawful permanent resident and the issues in this proceeding are moot. Therefore, this appeal will be dismissed. ORDER: The appeal is dismissed.
  • 128. To obtain a pdf version of this document, e-mail: joseph.whalen774@gmail.com Page 128 AAO Non-Precedent L-Intracompany Transferee Decisions of 2012 Link to Decision Result, Excerpts, or Commentary Jul272012_08D7101.pdf APPEAL DISMISSED [L1-A] The petitioner filed this nonimmigrant petition seeking to employ the beneficiary as an L-1A nonimmigrant intracompany transferee pursuant to section 101(a)(15) (L) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1101(a)(15)(L). The petitioner, a corporation established in Florida, indicates that it is engaged in operating a [REDACTED] franchise. It claims to be an affiliate of the beneficiary's foreign employer, located in Essex, United Kingdom. The petitioner seeks to employ the beneficiary as its President for a period of one year. The director denied the petition, concluding that the petitioner failed to establish that the beneficiary will be employed in the United States in a primarily managerial or executive capacity. The petitioner subsequently filed an appeal. The director declined to treat the appeal as a motion and forwarded the appeal to the AAO for review. On appeal, the petitioner asserts that the director's decision contains errors of law, as well as errors of fact, due to an alleged missing response to a request for evidence. The petitioner submits a brief in support of the appeal. * * * * * Based on the foregoing, the petitioner has not established that the petitioner will be
  • 129. To obtain a pdf version of this document, e-mail: joseph.whalen774@gmail.com Page 129 AAO Non-Precedent L-Intracompany Transferee Decisions of 2012 Link to Decision Result, Excerpts, or Commentary employed in a primarily managerial or executive capacity. Accordingly, the appeal will be dismissed. Beyond the decision of the director, the record reflects that the beneficiary and her spouse are the owner/operators of the parent company. However, the record does not establish that the parent company is still doing business abroad. The fact that both owners of the foreign corporation reside in the United States raises the question of whether the affiliate organization is still doing business so that a qualifying relationship exists pursuant to 8 C.F.R. § 214.2(l)(1)(ii)(0). For this additional reason, the appeal must be dismissed and the petition denied. An application or petition that fails to comply with the technical requirements of the law may be denied by the AAO 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, 1043 (ED. Cal. 2001), aff’d. 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). When the AAO denies a petition on multiple alternative grounds, a plaintiff can succeed on a challenge only if it is shown that the AAO abused its discretion with respect to all of the AAO's enumerated grounds. See Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d at 1043.
  • 130. To obtain a pdf version of this document, e-mail: joseph.whalen774@gmail.com Page 130 AAO Non-Precedent L-Intracompany Transferee Decisions of 2012 Link to Decision Result, Excerpts, or Commentary Jul272012_09D7101.pdf 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. … APPEAL SUSTAINED [L1-A] The petitioner filed this nonimmigrant petition seeking approval of the beneficiary‟s employment as a nonimmigrant intracompany transferee pursuant to section 101 (a)(15)(L) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1101 (a)(15)(L). The petitioner, a Delaware corporation, states that it manufactures [REDACTED] brand brass plumbing fixtures and other home improvement products. It claims to be an affiliate of [REDACTED] located in Shenzhen, China. The petitioner has employed the beneficiary in L-1A status since March of 2007, and now seeks to extend the beneficiary's stay for an additional two years in L-1A status so that she may continue to serve in the position of Fittings Product Development Manager. The director denied the petition, concluding that the petitioner failed to establish that the beneficiary will be employed in the United States in a primarily managerial or executive capacity.
  • 131. To obtain a pdf version of this document, e-mail: joseph.whalen774@gmail.com Page 131 AAO Non-Precedent L-Intracompany Transferee Decisions of 2012 Link to Decision Result, Excerpts, or Commentary The petitioner subsequently filed an appeal. The director declined to treat the appeal as a motion and forwarded the appeal to the AAO for review. On appeal, counsel for the petitioner asserts that the director misapplied applicable law and came to erroneous conclusions of fact in the denial. Counsel submits a brief and additional evidence in support of the appeal. * * * * * The sole issue addressed by the director is whether the petitioner established that the beneficiary will be employed by the United States entity in a managerial capacity. Upon review, counsel's assertions are persuasive. The petitioner has submitted sufficient evidence to establish that the beneficiary will more likely than not be employed in a primarily managerial capacity. As a preliminary matter, the AAO concurs with counsel that the director misapplied the new office extension regulations. The regulation at 8 C.F.R. § 214.2(l)(14)(ii) provides strict evidentiary requirements that the petitioner must satisfy prior to the approval of a petition to extend a new office. Here, the petitioner has provided sufficient evidence to demonstrate that it has been in business for more than a one- year period. Furthermore, the petitioner provided evidence to show that the previous petition for the beneficiary was not approved as a new office. Therefore, the new office extension regulations do
  • 132. To obtain a pdf version of this document, e-mail: joseph.whalen774@gmail.com Page 132 AAO Non-Precedent L-Intracompany Transferee Decisions of 2012 Link to Decision Result, Excerpts, or Commentary Jul302012_01D7101.pdf not apply in this case. The director's decision to deny the petition on this basis is withdrawn. APPEAL SUSTAINED [L1-A] The petitioner was formed as a corporation under the laws of the State of Delaware in 1996, and is engaged in the provision of telecommunications network infrastructure services. It claims to be an affiliate of Telecom New Zealand International Limited, located in Wellington, New Zealand. The petitioner is seeking to employ the beneficiary as the Senior Director Strategic Accounts for an initial period of three years. The director denied the petition, concluding that the petitioner failed to establish that the beneficiary would be employed in the United States in a primarily managerial or executive capacity. The petitioner subsequently filed an appeal. The director declined to treat the appeal as a motion and forwarded the appeal to the AAO. On appeal, counsel asserts that the evidence of record is sufficient to satisfy the petitioner's burden of proof and establishes that the beneficiary will be employed in the United States in a managerial capacity.
  • 133. To obtain a pdf version of this document, e-mail: joseph.whalen774@gmail.com Page 133 AAO Non-Precedent L-Intracompany Transferee Decisions of 2012 Link to Decision Result, Excerpts, or Commentary Jul312012_01D7101.pdf APPEAL REJECTED AS IMPROPERLY FILED [L1-A] The petitioner, a California corporation, states that it operates a gemstone trading business. It claims to be a subsidiary of [REDACTED] located in India. The petitioner currently employs the beneficiary in the position of president and requests a one-year extension of his L-1A status. The director denied the petition on July 16, 2010 concluding that the petitioner failed to establish that it would employ the beneficiary in a qualifying managerial or executive capacity. On August 9, 201 0, a Form 1-290B, Notice of Appeal or Motion, was filed by former counsel [REDACTED], without a new Form G-28, Notice of Entry of Appearance as Attorney or Representative signed by the petitioner. Effective March 4, 2010, the regulation at 8 C.F.R. § 292.4(a) requires that a "new [Form G-28] must be filed with an appeal filed with the [AAO]." Title 8 C.F.R. § 292.4(a) further requires that the new Form G-28 "must be properly completed and signed by the petitioner, applicant, or respondent to authorize representation in order for the appearance to be recognized by DHS."
  • 134. To obtain a pdf version of this document, e-mail: joseph.whalen774@gmail.com Page 134 AAO Non-Precedent L-Intracompany Transferee Decisions of 2012 Link to Decision Result, Excerpts, or Commentary Jul312012_02D7101.pdf Jul312012_03D7101.pdf On June 19, 2012, this office mailed the petitioner and former counsel a notice requesting a new, properly executed Form G-28 personally signed by both counsel and by an authorized official of the petitioning entity. The AAO instructed counsel to submit the new Form G-28 within 15 days, and advised that failure to submit this document would result in the rejection of the appeal as improperly filed. As of this date, the AAO has not received any response to this written request. APPEAL DISMISSED AS MOOT [L1-A] DISCUSSION: The Director, Vermont Service Center, denied the nonimmigrant visa petition. The matter then came before the Administrative Appeals Office (AAO) on appeal. On May 22, 2012, this office provided the petitioner with notice of derogatory information in the record and afforded the petitioner an opportunity to provide evidence that might overcome this information. The petitioner filed this nonimmigrant petition seeking to classify the beneficiary as an intracompany transferee pursuant to section 101(a)(15)(L) of the Immigration and Nationality Act (the Act), 8 U.S.C. 1101(a)(15)(L). The petitioner, a Texas limited liability company, states that it operates a telecommunications services company.
  • 135. To obtain a pdf version of this document, e-mail: joseph.whalen774@gmail.com Page 135 AAO Non-Precedent L-Intracompany Transferee Decisions of 2012 Link to Decision Result, Excerpts, or Commentary Aug072012_01D7101.pdf The petitioner seeks to employ the beneficiary in the position of general manager for a period of two years. The director denied the petition on April 9, 2010, based on a finding that the petitioner failed to establish: (1) that the beneficiary would be employed in the United States in a primarily managerial or executive capacity; or (2) that the U.S. company maintained adequate physical premises to operate its business as of the date it filed the petition. The AAO conducts appellate review on a de novo basis. See Soltane v. DOJ, 381 F.3d 143, 145 (3d Cir. 2004). Pursuant to 8 CFR. 103.2(b)(16)(i), this office notified the petitioner on May 22, 2012 that, according to the AAO's search of State of Texas corporate records and business registrations, the petitioner's corporate status is "No Standing, Franchise Responsibility Ended."…….. APPEAL DISMISSED [L1-A] …The petitioner, a corporation established under the laws of the State of California in 2009, states that it intends to engage in international trade. It claims to be a subsidiary of Wenzhou Shiqun Clothing Co., Ltd., located in China. The petitioner seeks to employ the beneficiary as the president of its new office in the United States for a period of three years.
  • 136. To obtain a pdf version of this document, e-mail: joseph.whalen774@gmail.com Page 136 AAO Non-Precedent L-Intracompany Transferee Decisions of 2012 Link to Decision Result, Excerpts, or Commentary The director denied the petition on March 31, 2010, after concluding that the petitioner failed to establish that the United States and foreign entities have a qualifying relationship. Specifically, the director found that the petitioner did not submit evidence that its claimed foreign parent company paid for its ownership interest in the new U.S. company. The director acknowledged the petitioner's claim that the foreign entity had four of its employees transfer a total of $200,000 to the United States company rather than transferring the money directly, but determined that the petitioner did provide documentary evidence of a Chinese government policy to restrict Chinese businesses from investing foreign currency into businesses overseas or documentary evidence to establish that funds provided to the foreign entity's employees were actually passed on to the petitioning company. * * * * * Upon initial review of the evidence of petition and appeal, the AAO noted an additional inconsistency in the record with respect to the foreign funds transfers to the U.S. company, and further found potentially derogatory information regarding the ownership of the U.S. company after reviewing the petitioning company's public web site. Accordingly, on May 4, 2012, the AAO issued a notice of derogatory information and intent to deny pursuant to 8 C.F.R. § 103.2(b)(16)
  • 137. To obtain a pdf version of this document, e-mail: joseph.whalen774@gmail.com Page 137 AAO Non-Precedent L-Intracompany Transferee Decisions of 2012 Link to Decision Result, Excerpts, or Commentary Aug072012_02D7101.pdf Aug082012_01D7101.pdf (i), and provided the petitioner with 30 days in which to submit rebuttal evidence. As of this date, the petitioner's deadline for a response has passed, and the AAO has not received any additional evidence. Accordingly, the record will be considered complete. APPEAL DISMISSED [L1-A] ….The petitioner, a Georgia corporation, states that it operates a beauty supplies business. It claims to be the parent company of Powdercraft (Pty) Ltd., located in South Africa. The petitioner seeks to transfer the beneficiary from the South African company to serve as its Vice President and General Manager for a period of three years. The director denied the petition concluding that the petitioner failed to establish that it would employ the beneficiary in a qualifying managerial or executive capacity. MOTION DISMISSED [L1-A] The director denied the petition concluding that the petitioner failed to establish (1) that the beneficiary will be employed in a managerial or executive capacity or (2) that the petitioner would support the beneficiary in such a capacity, within one year of commencing
  • 138. To obtain a pdf version of this document, e-mail: joseph.whalen774@gmail.com Page 138 AAO Non-Precedent L-Intracompany Transferee Decisions of 2012 Link to Decision Result, Excerpts, or Commentary Aug082012_02D7101.pdf operations in the United States. The AAO subsequently dismissed the appeal concluding that the petitioner failed to establish: (1) that the beneficiary will he employed in a managerial or executive capacity, (2) that 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, as required by 8 C.F.R. § 214.2(l)(3)(v)(B), (3) that a qualifying relationship exists between the petitioner and the foreign entity, and (4) that the foreign entity will continue to do business as required at 8 C.F.R. § 214.2(l)(1) (ii)(G)(2). SUMMARILY DISMISSED [L1-B] The petitioner filed this nonimmigrant petition seeking to classify the beneficiary as an intracompany transferee in a specialized knowledge capacity pursuant to section 101(a)(15)(L) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 101(a)(15)(L). The petitioner, a Colorado limited liability company, states that it is a federal defense contractor with a branch office located in Kabul, Afghanistan. It seeks to employ the beneficiary in the position of business and finance manager for a period of three years. The director denied the petition on April 23, 2012 based on a finding that the
  • 139. To obtain a pdf version of this document, e-mail: joseph.whalen774@gmail.com Page 139 AAO Non-Precedent L-Intracompany Transferee Decisions of 2012 Link to Decision Result, Excerpts, or Commentary petitioner failed to establish: (1) that the beneficiary was employed by the qualifying organization abroad for one continuous year within the three years preceding the filing of the petition; (2) that the beneficiary's employment abroad was in a qualifying managerial or executive capacity, or that it involved specialized knowledge; (3) that the beneficiary possesses specialized knowledge; and (4) that the beneficiary's proposed position in the United States is in a specialized knowledge capacity. The petitioner subsequently filed an appeal. The director declined to treat the appeal as a motion and forwarded the appeal to the AAO for review. On the Form I-290B, Notice of Appeal or Motion, counsel for the petitioner states: The USCIS erred when it concluded that the beneficiary was not coming to the United States to fill a specialized knowledge position. The USCIS erred when it concluded that the proffered position was akin to a Construction Manager. The USCIS erred when it concluded that the beneficiary was not employed in a specialized knowledge position overseas. The USCIS erred when it concluded the beneficiary had not been
  • 140. To obtain a pdf version of this document, e-mail: joseph.whalen774@gmail.com Page 140 AAO Non-Precedent L-Intracompany Transferee Decisions of 2012 Link to Decision Result, Excerpts, or Commentary Aug082012_03D7101.pdf employed by the Petitioner in a specialized knowledge capacity for at least one year in the last three years. A brief of the issues will be submitted to the Administrative Appeals Office. Counsel indicated on the Form I-290B that he would forward a brief and/or additional evidence to the AAO within 30 days. The appeal was filed on May 25, 2012. As of this date, the AAO has received nothing further and the record will be considered complete. DENIAL WITHDRAWN, CASE REMANDED FOR NEW DECISION [L1-A] The petitioner, a Texas corporation, is engaged in the retail sale and wholesale distribution of pottery and related products. It claims to be an affiliate of Amigos Imports de Mexico, located in Mexico. The petitioner currently employs the beneficiary as its president pursuant to an approved H-1B classification nonimmigrant petition and requests that he be granted a change of nonimmigrant status and a one-year extension of stay. The director denied the petition, concluding that the petitioner failed to establish that the beneficiary has been or
  • 141. To obtain a pdf version of this document, e-mail: joseph.whalen774@gmail.com Page 141 AAO Non-Precedent L-Intracompany Transferee Decisions of 2012 Link to Decision Result, Excerpts, or Commentary will be employed in a managerial or executive capacity. The director's determination was based on a finding that the petitioner: (1) failed to submit a complete response to a request for evidence (RFE) issued on July 15, 2010; and (2) submitted false information in support of the nonimmigrant visa petition. Specifically, the director questioned whether the petitioner actually filed the submitted IRS Forms 1120, W-3 and W-2 with the Internal Revenue Service. The petitioner subsequently filed an appeal. The director declined to treat the appeal as a motion and forwarded the appeal to the AAO for review. On appeal, counsel for the petitioner asserts that the director denied the petition, in part, based on the petitioner's failure to provide evidence that was never requested. In addition, the petitioner submits evidence obtained from the Social Security Administration and Internal Revenue Service confirming that the petitioner did in fact timely file all required federal tax documents. Counsel submits a brief and additional documentary evidence in support of the appeal. Upon review, the AAO agrees with counsel that the director's decision contains errors of fact and provides inadequate legal support for the conclusion that the petitioner will not employ the beneficiary in a qualifying
  • 142. To obtain a pdf version of this document, e-mail: joseph.whalen774@gmail.com Page 142 AAO Non-Precedent L-Intracompany Transferee Decisions of 2012 Link to Decision Result, Excerpts, or Commentary Aug092012_02D7101.pdf managerial or executive capacity. As the record as presently constituted contains no clear evidence of eligibility, the AAO will withdraw the director's decision and remand the matter to the service center for further action and entry of a new decision consistent with the discussion herein. APPEAL DISMISSED [L1-A] The petitioner, [REDACTED], a New Jersey corporation established on June I, 2007, states that it provides travel, computer and technical consulting services. It claims to be a subsidiary of [REDACTED] located in Brasov, Romania. The beneficiary was previously granted L-I A status for a one-year period in order to open a new office in the United States and the petitioner now seeks to extend his status in the position of President for three additional years. The director denied the petition, concluding that the petitioner failed to establish that the beneficiary would be employed in a primarily managerial or executive capacity, or that the U.S. entity requires a bona fide manager or executive on a full-time basis. The petitioner subsequently filed an appeal. The director declined to treat the appeal as a motion and forwarded the appeal to the AAO for review. On appeal,
  • 143. To obtain a pdf version of this document, e-mail: joseph.whalen774@gmail.com Page 143 AAO Non-Precedent L-Intracompany Transferee Decisions of 2012 Link to Decision Result, Excerpts, or Commentary Aug102012_01D7101.pdf counsel for the petitioner asserts that the beneficiary is primarily engaged in executive and managerial duties. Counsel submits a brief and additional evidence in support of the appeal. APPEAL DISMISSED [L1-A] The petitioner, a California corporation established in 2009, states that it is engaged in the wholesale of scrap metal. It claims to be a subsidiary of Sunny Discovery Sdn. Bhd., located in Malaysia. The petitioner seeks to employ the beneficiary in the position of president and requests that the petition be adjudicated as one involving a "new office," as defined at 8 C.F.R. § 214.2(l)(1) (ii)(F). The petitioner requests a three- year extension of the beneficiary's L-1A status.FN1 __________________ FN1 The petitioner stated on the L classification supplement to Form 1-129 that the beneficiary is coming to the United States to open a new office. On March 2, 2009, approximately 13 months prior to the filing of this petition, USCIS approved a petition granting the beneficiary L-1A status in order to open a new office for Green Earth Metal Corp. (WAC 09 106 50615), a California corporation established in 2008, which the petitioner claims as an affiliate. As discussed herein, the instant petitioner cannot be considered a "new office," as that term is defined at 8 C.F.R. § 214.2(l)(1)(ii)(F).
  • 144. To obtain a pdf version of this document, e-mail: joseph.whalen774@gmail.com Page 144 AAO Non-Precedent L-Intracompany Transferee Decisions of 2012 Link to Decision Result, Excerpts, or Commentary Aug132012_01D7101.pdf The director denied the petition on August 6, 2010, concluding that the petitioner submitted a fabricated lease agreement in support of its claims that it secured physical premises for the office. The director further found …[that the petitioner]… [sic] failed to establish that the beneficiary would be employed in the United States in a primarily managerial or executive capacity. The petitioner subsequently filed an appeal. The director declined to treat the appeal as a motion and forwarded the appeal to the AAO for review. On appeal, counsel asserts that the director failed to give adequate consideration to evidence the petitioner submitted in response to the director's notice of intent to deny. Counsel asserts that the petitioner provided relevant and credible evidence that refuted the director's initial findings regarding the petitioner's physical premises and lease agreement. Further, counsel contends that the director "failed to analyze the beneficiary's status in light of the fact that the petitioner has only organized in November of 2009" and is a start-up company. Counsel submits a brief and evidence in support of the appeal. APPEAL DISMISSED [L1-A] The petitioner, a Delaware corporation established in 2010, states that it is a
  • 145. To obtain a pdf version of this document, e-mail: joseph.whalen774@gmail.com Page 145 AAO Non-Precedent L-Intracompany Transferee Decisions of 2012 Link to Decision Result, Excerpts, or Commentary subsidiary of Dexus Group OY, located in Finland. The petitioner intends to engage in the manufacture of food flavorings and related products. It seeks to employ the beneficiary in the position of chief executive officer of its new office in the United States for a period of one year. The director denied the petition concluding that the petitioner failed to establish: (1) that the U.S. company will employ the beneficiary in a qualifying managerial or executive capacity within one year of the approval of the petition; and (2) that it has secured sufficient physical premises to house the new office. The petitioner subsequently filed an appeal. The director declined to treat the appeal as a motion and forwarded the appeal to the AAO for review. On appeal, counsel asserts that the director's decision contains factual inaccuracies and contends that the director erred by denying the petition without requesting additional evidence regarding the beneficiary's proposed managerial or executive duties in the United States. Counsel states that the evidence of record establishes by a preponderance of the evidence that the new office will support an executive or managerial position within one year of approval of the petition. This case is another example of the importance of the Business Plan!
  • 146. To obtain a pdf version of this document, e-mail: joseph.whalen774@gmail.com Page 146 AAO Non-Precedent L-Intracompany Transferee Decisions of 2012 Link to Decision Result, Excerpts, or Commentary Aug132012_02D7101.pdf APPEAL DISMISSED [L1-A] The petitioner, a Florida corporation, states that it is a subsidiary of the beneficiary's foreign employer, Onlysys Colombia, S.A. It intends to engage in the wholesale of computers, parts and accessories. The petitioner seeks to employ the beneficiary in the position of president of its new office in the United States for a period of one year. The director denied the petition concluding that the petitioner failed to establish: (1) that the U.S. company will employ the beneficiary in a qualifying managerial or executive capacity within one year of the approval of the petition; and (2) that it has secured sufficient physical premises to house the new office. The petitioner subsequently filed an appeal. The director declined to treat the appeal as a motion and forwarded the appeal to the AAO for review. On appeal, counsel asserts that the director abused his discretion by denying the petition and failed to give proper consideration to the fact that the beneficiary is coming to the United States to open a new office. Counsel contends that the petitioner established by a preponderance of the evidence that the petitioner and beneficiary meet all requirements for the requested classification.
  • 147. To obtain a pdf version of this document, e-mail: joseph.whalen774@gmail.com Page 147 AAO Non-Precedent L-Intracompany Transferee Decisions of 2012 Link to Decision Result, Excerpts, or Commentary Aug132012_03D7101.pdf APPEAL DISMISSED [L1-A] The petitioner, a Chinese company, is engaged in the development and sale of horticultural products. It established a subsidiary, [REDACTED], in Indiana in 2010. The petitioner seeks to employ the beneficiary as the director of marketing and sales for its new office in the United States for a period of six years.FN1 __________ FN1 Pursuant to the regulation at 8 C.F.R. § 214.2(l)(7)(i)(A)(3), if the beneficiary is coming to the United States to open or be employed in a new office, the petition may be approved for a period not to exceed one year. __________ The director denied the petition concluding that the petitioner failed to establish: (1) that it has secured sufficient physical premises to house the new office; and (2) that the intended U.S. operation will support an executive or managerial position within one year of the approval of the petition. The petitioner subsequently filed an appeal. The director declined to treat the appeal as a motion and forwarded the appeal to the AAO for review. On appeal, counsel contests the director's findings with respect to both stated grounds for denial and asserts that the petitioner has met all eligibility requirements for the requested classification. Counsel submits a brief and additional evidence in support of the appeal.
  • 148. To obtain a pdf version of this document, e-mail: joseph.whalen774@gmail.com Page 148 AAO Non-Precedent L-Intracompany Transferee Decisions of 2012 Link to Decision Result, Excerpts, or Commentary Aug142012_01D7101.pdf SUMMARILY DISMISSED [L1-A] The petitioner filed this nonimmigrant petition seeking to classify the beneficiary as an L-1A nonimmigrant intracompany transferee pursuant to section 101(a)(15) (L) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1101(a)(15)(L). The petitioner, a Nevada corporation, provides services to terminally ill patients. It claims to be a subsidiary of [REDACTED], located in Manila, Philippines. The petitioner seeks to employ the beneficiary as its Chief Executive Officer. The director denied the petition on July 6, 2010, concluding that the petitioner failed to establish that it has a qualifying relationship with [REDACTED]. The petitioner subsequently filed an appeal. The director declined to treat the appeal as a motion and forwarded the appeal to the AAO for review. On appeal, counsel for the petitioner stated the following on Form I-290B, Notice of Appeal or Motion: "Please see Brief which will be delivered within 30 days." No additional documents accompanied the Form I-290B. As of this date, no brief or additional evidence has been submitted. The record will be considered complete.
  • 149. To obtain a pdf version of this document, e-mail: joseph.whalen774@gmail.com Page 149 AAO Non-Precedent L-Intracompany Transferee Decisions of 2012 Link to Decision Result, Excerpts, or Commentary Aug142012_02D7101.pdf DISMISSED AS MOOT [L1-A] The petitioner filed this nonimmigrant petition to extend the beneficiary's employment as an L-1A nonimmigrant intracompany transferee pursuant to section 101(a)(15)(L) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1101(a)(15)(L). The petitioner, a California corporation engaged in manufacturing and importing plastic products, has employed the beneficiary as Marketing Director since May 26, 2007 and now seeks to extend the beneficiary's L-1 A status for an additional two years. The director denied the petition on June 7, 2010, concluding that the petitioner failed to establish that the beneficiary would be employed in the United States in a primarily managerial or executive capacity. A review of U.S. Citizenship and Immigration Services (USCIS) records indicates that the beneficiary of this petition has adjusted status to that of a U.S. permanent resident as of September 12, 2011. While the petitioner has not withdrawn the appeal in this proceeding, it would appear that the beneficiary is presently a lawful permanent resident and the issues in this proceeding are moot. Therefore, this appeal is dismissed.
  • 150. To obtain a pdf version of this document, e-mail: joseph.whalen774@gmail.com Page 150 AAO Non-Precedent L-Intracompany Transferee Decisions of 2012 Link to Decision Result, Excerpts, or Commentary Aug152012_01D7101.pdf SUMMARILY DISMISSED [L1-A] The petitioner, a California corporation, is engaged in the import and export of electronic appliances. It claims to be a subsidiary of Nanjing Hisense Digital Science & Technology Co., Ltd., located in Nanjing, China. USCIS previously granted the petitioner one year to open a new office in the United States, and granted the beneficiary L-1A status for one year to serve as the petitioner's president. The petitioner now seeks to extend the beneficiary's L-1 A status for an additional year. The director denied the petition on November 16, 2010, concluding that the petitioner failed to establish that the beneficiary will be employed in a position that is primarily executive or managerial in nature. The petitioner subsequently filed an appeal. The director declined to treat the appeal as a motion and forwarded the appeal to the AAO for review. On appeal, the petitioner stated the following on Form I-290B, Notice of Appeal or Motion: "The company has been running smoothly for 1 year already. And we plan to further develop our business in America. I will appreciate it if you could allow me 30 more days to present more evidence. Thanks." As of this date, no brief or additional evidence has been submitted. The record will be considered complete.
  • 151. To obtain a pdf version of this document, e-mail: joseph.whalen774@gmail.com Page 151 AAO Non-Precedent L-Intracompany Transferee Decisions of 2012 Link to Decision Result, Excerpts, or Commentary Aug162012_01D7101.pdf APPEAL DISMISSED [L1-A] The petitioner, a New York corporation established in September 2004, is self- described as a company engaged in sales and trading of fashion apparel. It claims to be a subsidiary of the beneficiary's foreign employer, Greenfield Fashion Limited, a fashion apparel manufacturer located in Hong Kong. The petitioner seeks to employ the beneficiary as its director of sales for a period of three years. The director denied the petition concluding that the petitioner did not establish that (1) the beneficiary will be employed in the United States in a primarily managerial or executive capacity; or (2) the petitioner had been "doing business" in the United States in accordance with the regulation at 8 C.F.R. § 214.2(l)(1)(ii)(H). The petitioner subsequently filed an appeal. The director declined to treat the appeal as a motion and forwarded the appeal to the AAO for review. On appeal, counsel asserts that the director erred and that the beneficiary's duties are primarily those of an executive or manager. Counsel also asserts that the director erred in finding that the petitioner failed to establish that the petitioner had been "doing business" in the United States.
  • 152. To obtain a pdf version of this document, e-mail: joseph.whalen774@gmail.com Page 152 AAO Non-Precedent L-Intracompany Transferee Decisions of 2012 Link to Decision Result, Excerpts, or Commentary Counsel submits a brief in support of the appeal. Counsel also submits the petitioner's corporate tax returns for 2004 and 2005. For the reasons discussed below, the AAO concurs with the director that the record fails to establish that the beneficiary will be employed in the United States in a primarily managerial or executive capacity. However, for the reasons discussed below, the AAO finds that the record establishes that the U.S. company is doing business in accordance with the regulations at 8 C.F.R. §§ 214.2(l)(1)(ii) (G) and (H), and this part of the director's decision is withdrawn. Beyond the decision of the director, the AAO finds that the petitioner failed to establish that the petitioning entity and the foreign entity had a qualifying relationship pursuant to 8 C.F.R. § 214.2 (l)(1)(ii)(G). An application or petition that fails to comply with the technical requirements of the law may be denied by the AAO 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, 1043 (E.D. Cal. 2001), aff’d, 345 F.3d 683 (9th Cir. 2003); see also Soltane v. DOJ, 381 F.3d 143, 145 (3d Cir. 2004) (noting that the AAO conducts appellate review on a de novo basis).
  • 153. To obtain a pdf version of this document, e-mail: joseph.whalen774@gmail.com Page 153 AAO Non-Precedent L-Intracompany Transferee Decisions of 2012 Link to Decision Result, Excerpts, or Commentary Aug282012_01D7101.pdf Sep112012_01D7101.pdf DISMISSEDC AS MOOT [L1-A] A review of the records of U.S. Citizenship and Immigration Services (USCIS) indicates that this beneficiary is also the beneficiary of an approved immigrant petition (Form 1-140) and has adjusted status to that of a legal permanent resident as of October 6, 2010. While the petitioner has not withdrawn the appeal in this proceeding, it would appear that the beneficiary is presently a U.S. permanent resident and the issues in this proceeding are moot. Therefore, this appeal will be dismissed as moot. [The appeal had been filed 7/16/2010.] APPEAL DISMISSED [L1-A] DISCUSSION: The petitioner has appealed the March 31, 2010 decision of the California Service Center Director denying the nonimmigrant visa petition. The Director concluded that the petitioner failed to establish it has a qualifying relationship with the beneficiary's foreign employer, and that the beneficiary will be employed in a primarily managerial or executive capacity. The AAO will dismiss the appeal. * * * * * The first issue addressed by the director is whether the petitioner established that it
  • 154. To obtain a pdf version of this document, e-mail: joseph.whalen774@gmail.com Page 154 AAO Non-Precedent L-Intracompany Transferee Decisions of 2012 Link to Decision Result, Excerpts, or Commentary Sep112012_02D7101.pdf has a qualifying relationship with the beneficiary's foreign employer. To establish a "qualifying relationship" under the Act and the regulations, the petitioner must show that the beneficiary's foreign employer and the proposed U.S. employer are the same employer (i.e. one entity with "branch" offices), or related as a "parent and subsidiary" or as "affiliates." See generally section 101(a)(15)(L) of the Act; 8 C.F.R. § 214.2 (l). * * * * * FN1 The director's denial notice misstated the ownership structure of the petitioner. It appears the director mistakenly referenced the ownership structure of [REDACTED] or [REDACTED] (which are identical in structure), instead of the foreign company, [REDACTED]. Nevertheless, the director's error was harmless and the reasoning for the decision remains sound. APPEAL DISMISSED [L1-A] The petitioner is a company providing cold storage and export services that obtained a non-immigrant visa for the beneficiary as an intracompany transferee pursuant to section 101(a)( 15)(L) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1101(a)(15)(L) on May 24, 2009. Subsequent to the approval of the petition, USCIS conducted two
  • 155. To obtain a pdf version of this document, e-mail: joseph.whalen774@gmail.com Page 155 AAO Non-Precedent L-Intracompany Transferee Decisions of 2012 Link to Decision Result, Excerpts, or Commentary administrative site visits at the petitioner's purported business address on June 19, 2009 and July 15, 2009 and found the following: (1) that no employees, including the petitioner, were present at the office location during either site visit: (2) that the petitioner's suite appeared to be shared with two other companies; and (3) that an employee from another company sharing the suite with petitioner stated that he had never heard of the beneficiary. Based on the aforementioned information, the director issued a Notice of Intent to Revoke to the petitioner on November 26, 2010 in accordance with 8 C.F.R § 214.2(l)(9)(iii) reasoning: (1) that the petitioner was not doing business consistent with 8 C.F.R § 214.2(l)(1) (ii)(H); and (2) that the beneficiary was not employed in an executive or managerial capacity pursuant to 8 C.F.R. § 214(l)(3)(ii). The petitioner was accorded thirty (30) days from the receipt of the Notice of Intent to Revoke to submit additional evidence or arguments to the director for consideration, but did not respond. As a result of the petitioner's failure to respond, the director revoked the non-immigrant petition on February 9, 2011. Counsel for the petitioner claims that the director erred in concluding the petitioner was not doing business and submits additional evidence on appeal purporting
  • 156. To obtain a pdf version of this document, e-mail: joseph.whalen774@gmail.com Page 156 AAO Non-Precedent L-Intracompany Transferee Decisions of 2012 Link to Decision Result, Excerpts, or Commentary that the beneficiary works remotely during Chinese business hours, thus explaining his lack of presence in the office during the site visits. However, this evidence cannot be accepted by the AAO on appeal. Consistent with 8 C.F.R. § 103.2(b)(13), the petitioner abandoned the petition by not responding to the director's Notice of Intent to Revoke with additional evidence or arguments within thirty-three (33) days of receipt. Where, as here, a petitioner has been put on notice of a deficiency in the evidence and has been given an opportunity to respond to that deficiency, the AAO will not accept evidence offered for the first time on appeal. See Matter of Soriano, 19 I&N Dec. 764 (BlA 1988); see also Matter of Obaigbena, 19 I&N Dec. 533 (BIA 1988). If the petitioner had wanted the submitted evidence to be considered, it should have submitted it in response to the director's Notice of Intent to Revoke. Id. Under the circumstances, the AAO need not and does not consider the sufficiency of the evidence submitted on appeal. Consequently, the appeal will be dismissed. Counsel's also claims that the petitioner's due process rights were violated. Counsel contends that "…. relying on a random person's unsubstantiated claims to revoke the petitioner's petition is clearly untenable and violat[ed] the petitioner's due process rights." The AAO finds this argument to be nonpersuasive.
  • 157. To obtain a pdf version of this document, e-mail: joseph.whalen774@gmail.com Page 157 AAO Non-Precedent L-Intracompany Transferee Decisions of 2012 Link to Decision Result, Excerpts, or Commentary The instructions to the Form 1-129 (rev. June 12, 2009), at page 23, notify the petitioner of "USCIS Compliance Review and Monitoring." The instructions state: The Department of Homeland Security has the right to verify any information you submit to establish eligibility for the immigration benefit you are seeking at any time. Our legal right to verify this information is in 8 U.S.C. 1103, 1155, 1184, and 8 CFR parts 103,204, 205, and 214. To ensure compliance with applicable laws and authorities, USCIS may verify information before or after your case has been decided. Agency verification methods may include, but are not limited to: review of public records and information; contact via written correspondence, the Internet, facsimile or other electronic submission, or telephone; unannounced physical site inspections of residences and places of employment; and interviews. Information obtained through verification will be used to assess your compliance with the laws and to determine your eligibility for the benefit sought. Subject to the restrictions under 8 CFR part 103.2(b)(16), you will be provided an opportunity to address
  • 158. To obtain a pdf version of this document, e-mail: joseph.whalen774@gmail.com Page 158 AAO Non-Precedent L-Intracompany Transferee Decisions of 2012 Link to Decision Result, Excerpts, or Commentary Sep122012_05D7101.pdf any adverse or derogatory information, that may result from a USCIS compliance review, verification, or site visit .... (Emphasis in original.) SUMMARILY DISMISSED [L1-B] The petitioner, a New York corporation, states that it is engaged in jewelry manufacturing. The petitioner claims to be an affiliate of [REDACTED], located in Istanbul, Turkey. The petitioner seeks to employ the beneficiary as a Jewelry model maker for a period of three years. On February 10, 2011, the director denied the petition concluding that the petitioner failed to establish that the beneficiary will be employed in a specialized knowledge capacity. In denying the petition, the director found that the duties provided by the petitioner do not appear to be significantly different from those of other jewelry modelers working at an advanced level for other jewelers and therefore do not serve to establish that they warrant the expertise of someone possessing truly specialized knowledge. On March 9, 2011, counsel for the petitioner submitted the Form 1-290B, Notice of Appeal or Motion. In appeal the denial of the underlying petition. The director declined to treat the appeal as a
  • 159. To obtain a pdf version of this document, e-mail: joseph.whalen774@gmail.com Page 159 AAO Non-Precedent L-Intracompany Transferee Decisions of 2012 Link to Decision Result, Excerpts, or Commentary Sep172012_02D7101.pdf motion and forwarded the appeal to the AAO for review. The petitioner marked the box at part two of the Form I-290B to indicate that a brief and/or additional evidence would be submitted to the AAO Within 30 days. The record indicate, that the petitioner did not file a brief or supplemental evidence within the allowed timeframe. The AAO will consider the record complete as presently constituted. To establish eligibility for the L-1 nonimmigrant visa classification, the petitioner must meet the criteria outlined in section 101(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 the 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. ___________ Counsel did not state any substantive argument of error or offer new evidence. SUMMARILY DISMISSED [L1-A] The petitioner, a North Carolina corporation that began operations in
  • 160. To obtain a pdf version of this document, e-mail: joseph.whalen774@gmail.com Page 160 AAO Non-Precedent L-Intracompany Transferee Decisions of 2012 Link to Decision Result, Excerpts, or Commentary 2009, is in the "restaurant/food wholesale/food distributor" business. The petitioner seeks to employ the beneficiary as the general manager of its new office in the United States for a period of three years. FN1 The director denied the petition on February 17, 2011, concluding that the petitioner failed to establish that the beneficiary would be employed in a primarily managerial or executive capacity within one year of the petition. In denying the petition, the director observed that the beneficiary would not be functioning at a senior level within the organization or would be managing a subordinate staff of professional, managerial, or supervisory personnel who would relieve the beneficiary from performing non-qualifying duties. The director also observed that, at the time of filing, the beneficiary would only be in charge of two butchers, three cashiers, one tortilla maker, and two cooks. The petitioner subsequently filed an appeal.FN2 The director declined to treat the appeal as a motion and forwarded the appeal to the AAO for review, On appeal, the petitioner indicated on Form 1-290B, Notice of Appeal or Motion, that it was filing this appeal because it had new evidence that it wanted the United States Citizenship and Immigration Services (USCIS) to consider. The petitioner stated:
  • 161. To obtain a pdf version of this document, e-mail: joseph.whalen774@gmail.com Page 161 AAO Non-Precedent L-Intracompany Transferee Decisions of 2012 Link to Decision Result, Excerpts, or Commentary We have new information to prove that [the petitioner] has sufficient workers to handle day-to-day production for the store, has increased total employees to 13, and that the General Manager will be primarily managing the work of another manager and two supervisors. Based on this new information that USCIS did not have when the case was decided, we request reopening of the denial. ... ____________ FN1 The petition is treated as a new office petition because the petitioner began operations in 2009, even though it was incorporated in 2008. Because this is a new office petition, the petition could only have been approved for a period not to exceed one year, and not for the full three years as requested. See 8 C.F.R. § 214.2 (l)(7). FN2 The petitioner requested an appeal on Part 2, Form 1-290B, but the petitioner requested "a Motion to Reopen, and alternatively, an appeal" as its basis for appeal. Because the petitioner requested an appeal on Part 2, Form 1-290B. and because the director declined to treat the appeal as a motion and forwarded the appeal to the AAO for review, the Form I-290B must be adjudicated as an appeal. ____________ * * * * * On appeal, the petitioner has not specifically identified an erroneous conclusion of law or statement of fact on the part of the director as a basis for the appeal. Neither counsel nor the petitioner has stated that the director's decision was
  • 162. To obtain a pdf version of this document, e-mail: joseph.whalen774@gmail.com Page 162 AAO Non-Precedent L-Intracompany Transferee Decisions of 2012 Link to Decision Result, Excerpts, or Commentary in error based on the evidence submitted prior to the adjudication of the petition. Rather, the petitioner's basis for appeal is a request for reopening and reconsideration based upon new evidence. Inasmuch as the petitioner has not identified specifically an erroneous conclusion of law or statement of fact as a basis for the appeal, the appeal must be summarily dismissed. 8 C.F.R. § 103.3(a) (1)(v). The AAO notes that even if the petitioner has experienced financial growth and has hired additional employees since it filed the instant petition, these developments would not overcome the denial of the petition. The petitioner must establish eligibility at the time of filing; a new petition cannot be approved at a future date, or on appeal, 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). As discussed in the director's decision, the petitioner's evidence did not establish that the company would grow to the point where it would require the beneficiary to perform primarily managerial or executive duties. If significant changes are made to the initial request for approval, the petitioner must file a new petition rather than seek approval of a petition that is not supported by the facts in the record.
  • 163. To obtain a pdf version of this document, e-mail: joseph.whalen774@gmail.com Page 163 AAO Non-Precedent L-Intracompany Transferee Decisions of 2012 Link to Decision Result, Excerpts, or Commentary Sep202012_03D7101.pdf APPEAL DISMISSED [L1-A] [Missing pages 2-6.] While the petitioner has consistently stated that the beneficiary will be employed in an executive capacity, it has also consistently failed to provide a detailed description of his actual duties or a corroborated account of the company's organizational sufficient to show that someone other than the beneficiary would be available to perform non-qualifying duties associated with the company activities he is claimed to oversee. 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 must prove that the beneficiary primarily performs these specified responsibilities and does not spend a majority of his time on day-to-day functions. Champion World, Inc. v. INS, 940 F.2d 1533 (Table), 1991 WL 144470 (9th Cir. July 30, 1991). Here, while the AAO does not doubt that the beneficiary will possess the requisite level of authority, the deficiencies addressed above prohibit a finding that his actual duties will be comprised primarily of qualifying executive duties. Therefore, the petitioner's claims fail on an evidentiary basis, and the petitioner has not sustained its burden to establish
  • 164. To obtain a pdf version of this document, e-mail: joseph.whalen774@gmail.com Page 164 AAO Non-Precedent L-Intracompany Transferee Decisions of 2012 Link to Decision Result, Excerpts, or Commentary Oct062012_02D7101.pdf that the beneficiary's position will be primarily executive or managerial on in nature. The petitioner has not submitted additional evidence on appeal to overcome the director's determination. Accordingly, the appeal will be dismissed. APPEAL DISMISSED [L1-A] The petitioner, a California limited liability company established in October 2009, states that it intends to engage in promotional consulting, on-air product demonstrations, and infomercials. It claims to be an affiliate of Outstanding Productions, Inc., located in Toronto, Canada. The petitioner seeks to employ the beneficiary as the president of its new office in the United States for a period of one year. The director denied the petition, concluding that the petitioner failed to establish: (1) that the petitioner has secured sufficient physical premises to house the new office; (2) that the beneficiary would be employed in the United States in a primarily managerial or executive capacity within one year of approval of the petition; or (3) that the beneficiary has been employed by the foreign entity in a primarily managerial or executive capacity. The petitioner subsequently filed an appeal. The director declined to treat the appeal as a motion and forwarded the
  • 165. To obtain a pdf version of this document, e-mail: joseph.whalen774@gmail.com Page 165 AAO Non-Precedent L-Intracompany Transferee Decisions of 2012 Link to Decision Result, Excerpts, or Commentary Nov012012_02D7101.pdf appeal to the AAO for review. On appeal, counsel asserts that the beneficiary's proffered position is in an executive capacity and that the nature of the petitioner's and foreign entity's business requires the use of independent contractors on an "as-needed" basis. Counsel further states that the beneficiary is "in the process of securing premises for his business as it is newly established and in the process of expanding." APPEAL DISMISSED [L1-A] The petitioner, a California corporation established on March 4, 2010, engages in import and export of wholesale garments and business apparel. It claims to be a subsidiary of [REDACTED] located in [REDACTED]. The petitioner seeks to employ the beneficiary as the president and chief executive officer for an initial period of three years. The director denied the petition, concluding that the petitioner failed to establish that the beneficiary would be employed in a primarily managerial or executive capacity. In the denial, the director concluded that the beneficiary would be assisting with the day-to-day non-supervisory duties of the business. The director further observed that the petitioner failed to provide any information regarding the job duties and education levels of the beneficiary's subordinates.
  • 166. To obtain a pdf version of this document, e-mail: joseph.whalen774@gmail.com Page 166 AAO Non-Precedent L-Intracompany Transferee Decisions of 2012 Link to Decision Result, Excerpts, or Commentary The petitioner subsequently filed an appeal. The director declined to treat the appeal as a motion and forwarded the appeal to the AAO for review. On appeal, the petitioner asserts that it the beneficiary will be employed in a primarily executive position. The petitioner submits a letter and additional evidence in support of the appeal. * * * * * The AAO does not doubt that the beneficiary will have the appropriate level of authority over the petitioner's business as its president and CEO. However, the petitioner failed to meet its burden of proof in establishing that the beneficiary will primarily be engaged in managerial or executive duties, rather than primarily performing the majority of his time on non-qualifying, day-to-day functions. Overall, the vague job description provided for the beneficiary, considered in light of the petitioner's organizational structure at the time of filing, prohibits a determination that the beneficiary would be primarily employed in a managerial or executive position. Accordingly, the appeal will be dismissed. 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
  • 167. To obtain a pdf version of this document, e-mail: joseph.whalen774@gmail.com Page 167 AAO Non-Precedent L-Intracompany Transferee Decisions of 2012 Link to Decision Result, Excerpts, or Commentary Nov012012_03D7101.pdf managerial or executive duties); see also Matter of Church Scientology Intn'l., 19 I&N Dec. 593, 604 (Comm'r 1988); Champion World, Inc. v. INS. 940 F.2d 1533. APPEAL DISMISSED [L1-A] The petitioner, a New York corporation established on April 9, wholesale and export of clothing. The petitioner claims to be a branch office of [REDACTED] in Haifa, Israel, claiming that [REDACTED] owns 100% of the shares of both companies. The beneficiary was previously granted L-1A status for a one- year period in order to open a new office in the United States. The petitioner seeks to extend the beneficiary's employment as its President for three additional years. The director denied the petition, concluding that the petitioner failed to establish that the beneficiary would be employed in the United States in a primarily managerial or executive capacity. The petitioner subsequently filed an appeal. The director declined to treat the appeal as a motion and forwarded the appeal to the AAO. On appeal, counsel asserts that the beneficiary is employed in a primarily managerial or executive capacity. Counsel submits a brief and additional evidence to support the appeal.
  • 168. To obtain a pdf version of this document, e-mail: joseph.whalen774@gmail.com Page 168 AAO Non-Precedent L-Intracompany Transferee Decisions of 2012 Link to Decision Result, Excerpts, or Commentary Nov012012_04D7101.pdf DISMISSED AS MOOT [L1-A] The petitioner filed the nonimmigrant petition to classify the beneficiary as an intracompany transferee pursuant to section 101(a)(15)(L) of the Immigration and Nationality Act (the Act), 8 U.S.C, § 1101(a)(15)(L). The petitioner seeks to temporarily transfer the beneficiary to the United States as a managerial or executive employee for a period of one year in order to open a new office. The director denied the petition on July 11, 2011. The petitioner filed a timely appeal on August 11, 2011. A review of U.S. Citizenship and Immigration Services (USCIS) records indicates that, subsequent to the denial of the petition, the petitioner filed a new Form I-129, Petition for a Nonimmigrant Worker, on May 14, 2012. (EACI216751386). USCIS approved the petition and granted the beneficiary L-1A classification from May 14, 2012 through May 13, 2015. While the petitioner has not withdrawn the appeal in this proceeding, it would appear that the beneficiary is presently authorized for employment with the petitioner in the requested classification, and the issues in this proceeding are moot. Accordingly, the AAO finds that the beneficiary's current nonimmigrant status deprives this appeal of any practical
  • 169. To obtain a pdf version of this document, e-mail: joseph.whalen774@gmail.com Page 169 AAO Non-Precedent L-Intracompany Transferee Decisions of 2012 Link to Decision Result, Excerpts, or Commentary significance. Considerations of prudence warrant the dismissal of the appeal as moot. See Matter of Luis, 22 I&N Dec. 747, 753 (BIA 1999). B. Respondent’s Departure Does Not Render the Service’s Appeal Moot [from Luis, Id.] We also conclude that the respondent‟s departure did not render moot the Service‟s appeal from the Immigration Judge‟s November 25, 1996, order terminating deportation proceedings. The traditional “mootness doctrine” to which the Service refers in its brief applies to Article III courts only. The mootness doctrine, like those relating to standing, ripeness, and justiciability, is rooted in the constitutional requirement that federal courts may exercise judicial power only when presented with actual, live cases or controversies. See U.S. Const. art. III, § 2; Lewis v. Continental Bank Corp., 494 U.S. 472, 477 (1990); National Treasury Employees Union v. United States, 101 F.3d 1423, 1427 (D.C. Cir. 1996); Brooks v. Georgia State Bd. of Elections, 59 F.3d 1114, 1118-19 (11th Cir. 1995). As an administrative tribunal, this Board is not subject to Article III‟s case- or-controversy requirement, and therefore our jurisdiction is not governed or restricted by constitutional “mootness doctrine” jurisprudence.FN3
  • 170. To obtain a pdf version of this document, e-mail: joseph.whalen774@gmail.com Page 170 AAO Non-Precedent L-Intracompany Transferee Decisions of 2012 Link to Decision Result, Excerpts, or Commentary ________ FN3 We therefore need not address the Service‟s contention that this matter falls within the “capable of repetition, yet evading review” exception to the Mootness doctrine. See, e.g., Spencer v. Kemna, 523 U.S. 1, 118 S. Ct. 978, 988 (1998) (discussing “capable of repetition” exception to mootness doctrine); Brooks v. Georgia State Bd. of Elections, supra, at 1120 (same). _________ At the same time, however, in exercising our regulation-defined “discretion and authority . . . as is appropriate and necessary for the disposition of [a] case,” 8 C.F.R. § 3.1(d)(1) (1999), this Board has reserved the discretion to dismiss appeals and deny motions as moot as a matter of prudence. In certain circumstances, where a controversy has become so attenuated or where a change in the law or an action by one of the parties has deprived an appeal or motion of practical significance, considerations of prudence may warrant dismissal of an appeal or denial of a motion as moot. See, e.g., Matter of Valles, supra (alien‟s bond appeal mooted where Immigration Judge grants alien‟s bond redetermination request during pendency of appeal); Matter of Okoh, 20 I&N Dec. 864, 865-66 (BIA 1994) (alien‟s motion for reconsideration mooted when Board‟s final order was executed, and alien was excluded and deported); Matter of Rosales, 19 I&N Dec. 655, 657 (BIA 1988) (Service‟s appeal of Immigration Judge‟s
  • 171. To obtain a pdf version of this document, e-mail: joseph.whalen774@gmail.com Page 171 AAO Non-Precedent L-Intracompany Transferee Decisions of 2012 Link to Decision Result, Excerpts, or Commentary grant of attorney‟s motion to withdraw as counsel mooted by Immigration Judge‟s grant of such motion and attorney‟s discontinuance of representation of alien); Matter of Alphonse, 18 I&N Dec. 178, 180 (BIA 1981) (alien‟s appeal from denial of motion for change of venue was moot where Immigration Judge did not have jurisdiction to rule on motion in first instance); Matter of Wong, 15 I&N Dec. 209, 210 (BIA 1975) (issue raised by Service in motion mooted by changes in law during pendency of motion); Matter of Gilikevorkian, 14 I&N Dec. 454 (BIA 1973) (Service‟s cross appeal challenging Immigration Judge‟s grant of voluntary departure mooted where Board sustained alien‟s appeal of Immigration Judge‟s denial of adjustment of status). On the other hand, appeals that may ordinarily be considered moot “need not be so considered in each and every circumstance.” Matter of Morales, 21 I&N Dec. 130, at 147 (BIA 1996). For example, in Matter of Keyte, supra, we declined, as a matter of prudence, to dismiss as moot the appeal of an alien in exclusion proceedings who had departed from the United States after taking an appeal to the Board where our “resolution of the appeal adverse to the [alien] would still have legal consequences.” Id. at 159. In Matter of Morales, supra, we declined to dismiss as moot an interlocutory appeal filed by an alien who had been excluded and deported because the appeal “had merit,
  • 172. To obtain a pdf version of this document, e-mail: joseph.whalen774@gmail.com Page 172 AAO Non-Precedent L-Intracompany Transferee Decisions of 2012 Link to Decision Result, Excerpts, or Commentary properly asserted rights under [the law], was at no time specifically withdrawn, and raised issues . . . of continuing importance [to] the administration of the immigration laws.” Id. at 147. Moreover, we have held in cases arising in both exclusion and deportation proceedings that an alien‟s departure from the United States during the pendency of an appeal by the Service does not necessarily serve to defeat the Service‟s appeal. Matter of Brown,supra (deportation proceedings); Matter of Mincheff, 13 I&N Dec. 715, 721 n.1 (BIA 1970, 1971) (exclusion proceedings). In view of the aforementioned prudential considerations, we find that the respondent‟s departure from the United States pursuant to the January 30, 1997, joint stipulation before the district court does not warrant dismissal of the Service‟s appeal as moot. Like the interlocutory appeal in Morales, the Service‟s appeal has merit, has not been specifically withdrawn, and raises important issues of immigration law, namely the proper interpretation of provisions of section 241(a)(4) of the Act pertaining to the national security of this country. As in Keyte, a resolution of the Service‟s appeal adverse to the respondent would have significant legal consequences if the respondent were to seek admission to the United States in the future.
  • 173. To obtain a pdf version of this document, e-mail: joseph.whalen774@gmail.com Page 173 AAO Non-Precedent L-Intracompany Transferee Decisions of 2012 Link to Decision Result, Excerpts, or Commentary Nov012012_05D7101.pdf Furthermore, the joint stipulation expressly embodies the agreement between the respondent and the Service that the respondent‟s departure would not affect the pendency and vitality of the Service‟s appeal. This agreement signifies the parties‟ acknowledgment that the controversy is a live one with material legal consequences for the parties. While the stipulation is not controlling and cannot confer jurisdiction on this Board, it nevertheless is a prominent factor in our exercise of discretion regarding the appeal‟s mootness. Inasmuch as we hold that the Service‟s appeal has not been mooted by the respondent‟s departure, we will proceed to an analysis of the substantive issues presented on appeal. Luis, at pp. 752-754. SUMMARILY DISMISSED [L1-A] The director denied the petition finding that the petitioner failed to establish that the beneficiary will be employed in the United States in a managerial or executive capacity, The director reviewed the listing of employees provided by the petitioner, and their duties, and concluded that the petitioner was acting only as a first-line supervisor of non-professional employees. Further, the director concluded that the record did not establish that the beneficiary‟s duties were primarily in an executive capacity,
  • 174. To obtain a pdf version of this document, e-mail: joseph.whalen774@gmail.com Page 174 AAO Non-Precedent L-Intracompany Transferee Decisions of 2012 Link to Decision Result, Excerpts, or Commentary Nov012012_06D7101.pdf On appeal, the petitioner submits a Form I-290B, Notice of Appeal or Motion. The petitioner failed to complete Part 3 of the Form I-290B, the filer is where instructed to "[p]rovide a statement explaining any erroneous conclusion or fact in the decision being appeal." The petitioner indicated that it would submit a brief and/or evidence to the AAO within 30 days; however, the record indicates that the petitioner did not file a brief or supplemental evidence. The AAO will consider the record complete as presently constituted. APPEAL REJECTED AS UNTIMELY [L1-Unspecified] The record indicates that the service center director issued the decision on September 14, 2011. It is noted that the service center director properly gave notice to the petitioner that it had 33 days to file the appeal. Neither the Act nor the pertinent regulations grant the AAO authority to extend this time limit. Although the Form I-290B is dated September 13, 2011, it was not received by the service center until October 19, 2011, or 35 days after the decision was issued. Accordingly, the appeal was untimely filed. The regulation at 8 C.F.R. § 103.3(a)(2) (v)(B)(2) states that, if an untimely appeal
  • 175. To obtain a pdf version of this document, e-mail: joseph.whalen774@gmail.com Page 175 AAO Non-Precedent L-Intracompany Transferee Decisions of 2012 Link to Decision Result, Excerpts, or Commentary Nov012012_07D7101.pdf Nov032012_03D7101.pdf meets the requirements of a motion to reopen or a motion to reconsider, the appeal must be treated as a motion, and a decision must be made on the merits of the case. The official having jurisdiction over a motion is the official who made the last decision in the proceeding, in this case the Director of the Vermont Service Center. See 8 C.F.R. § 103.5(a)(1)(ii). The director declined to treat the appeal as a motion and forwarded the matter to the AAO. APPEAL REJECTED AS UNTIMELY [L1-Unspecified] I-290B received 34 days after denial. The Director found no cause to treat the late appeal as a motion. AAO was forced to reject the appeal. SUMMARILY DISMISSED [L1-A] The petitioner, a Texas limited liability company, states that it is engaged construction and exp0l1ing construction machinery. The petitioner claims to be an affiliate of Masriah Construction, Co., located in Egypt. The petitioner currently employs the beneficiary in the position of managing director/general manager in L- 1A status and seeks to extend his status for three additional years. On October 27. 2011. the director denied the petition on two alternative grounds,
  • 176. To obtain a pdf version of this document, e-mail: joseph.whalen774@gmail.com Page 176 AAO Non-Precedent L-Intracompany Transferee Decisions of 2012 Link to Decision Result, Excerpts, or Commentary Dec042012_01D7101.pdf Dec052012_01D7101.pdf concluding that (1) the petitioner failed to establish that the beneficiary's position in the United States will be primarily managerial or executive, and (2) the petitioner failed to establish that the foreign entity is doing business and will continue to conduct business while the beneficiary is employed in the United States. In denying the petition, the director found that the petitioner had one year to establish the business and hire additional personnel to relieve the beneficiary from performing the daily tasks of operating the business. The director further found that the petitioner is no longer conducting the business the new office petition was approved for and has started a new business in auto mechanics. The petitioner has failed to establish the beneficiary's role in the new business and how his new duties qualify him as a manager or executive. The director also noted that the four contracts submitted by the petitioner as evidence that the foreign entity is conducting business were insufficient. REJECTED AS IMPROPERLY FILED [L1-A] NO NEW G-28. DISMISSED AS MOOT [L1-A] DISCUSSION: The nonimmigrant visa petition was denied by the Director, Vermont Service Center. It then came
  • 177. To obtain a pdf version of this document, e-mail: joseph.whalen774@gmail.com Page 177 AAO Non-Precedent L-Intracompany Transferee Decisions of 2012 Link to Decision Result, Excerpts, or Commentary Dec052012_02D7101.pdf before the Administrative Appeals Office (AAO) on appeal. On October 10, 2012, this office provided the petitioner with notice of adverse information and afforded the petitioner an opportunity to provide rebuttal evidence. The petitioner claims to be a corporation organized under the laws of the State of Kansas. It seeks to employ the beneficiary as Vice President. Accordingly, the petitioner endeavors to classify the beneficiary as a nonimmigrant alien pursuant to section 101(a)(15)(L) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1101(a)(15)(L). Pursuant to 8 C.F.R. § 103.2(b)(16)(i), this office notified the petitioner that, according to the records at the Kansas Secretary of State's website, the forfeited or dissolved. Petitioner did not respond. APPEAL DISMISSED [L1-A] The petitioner, a corporation established in the State of Washington on March 4, 2011, engages in dispatching shipments on behalf of others by common carriers. The pelitioner claims to be a subsidiary of [REDACTED] based in Magadan, Russia. The petitioner seeks to employ the beneficiary in the position of President of its new office in the United States for a period of one year.
  • 178. To obtain a pdf version of this document, e-mail: joseph.whalen774@gmail.com Page 178 AAO Non-Precedent L-Intracompany Transferee Decisions of 2012 Link to Decision Result, Excerpts, or Commentary Dec052012_03D7101.pdf The director denied the petition on October 28, 2011 concluding that the petitioner failed to establish that it has a qualifying relationship with the beneficiary‟s foreign employer. The petitioner subsequently filed an appeal on November 25, 2011. The director declined to treat the appeal as a motion and forwarded the appeal to the AAO. On appeal, counsel asserts that the director erred both factually and as a matter of law, and misconstrued the business transaction that took place between the foreign and U.S. companies. Counsel submits a brief and additional evidence in support of the appeal. SUMMARILY DISMISSED [L1-A] The petitioner, a Georgia corporation established in 2011, is in the media and advertising industry. According to the Form I-129, Petition for a Nonimmigrant Worker, the petitioner seeks to employ the beneficiary in the position of Media Director in its new office for a period of three years.FNl (A new office can only be approved for one-year initially.) The director denied the petition on December 19, 2011 on the sole ground that the petitioner failed to establish that the beneficiary would be employed in a primarily managerial or executive capacity. In denying the petition, the
  • 179. To obtain a pdf version of this document, e-mail: joseph.whalen774@gmail.com Page 179 AAO Non-Precedent L-Intracompany Transferee Decisions of 2012 Link to Decision Result, Excerpts, or Commentary Dec052012_04D7101.pdf director observed that the petitioner provided different position titles, for the beneficiary: Media Director, Vice President, Media and Accounting, and Communications Manager. The director concluded that the differing titles caused much confusion as to the exact position the petitioner is seeking to employ the beneficiary, as well as the proposed duties and responsibilities of the beneficiary. The director concluded that the beneficiary's position did not appear to involve the supervision and management of other supervisory, professional, or managerial employees. The director conduded that the stated responsibilities for the beneficiary appear to overlay or duplicate those of the President. Finally, the director concluded that the petitioncr failed to establish that the beneficiary would function at a senior level within the organization other than in position title, as it appeared that the beneficiary would be primarily engaged in providing assistance to the President of the company, not managing or directing the organization. Petitioner failed to present substantive legal arguments or point to errors of fact. APPEAL DISMISSED [L1-A] The petitioner, a Connecticut limited liability company established in 2009, states it is engaged in the trucking
  • 180. To obtain a pdf version of this document, e-mail: joseph.whalen774@gmail.com Page 180 AAO Non-Precedent L-Intracompany Transferee Decisions of 2012 Link to Decision Result, Excerpts, or Commentary business. It claims to be an affiliate of [REDACTED] and [REDACTED] both located in Trinidad and Tobago. The beneficiary was previously granted one year in L-1A status in order to open a new office in the United States as the petitioner's president and manager. The director denied the petition, concluding that the petitioner failed to establish that it would employ the beneficiary in a primarily executive or managerial capacity within one year. FN1 _________ FN1 The record and USCIS records confirm that the petitioner was previously granted L-1A status as a new office under the regulations on December 10, 2009 and is now applying for a three year extension of this visa. While the petitioner indicated on the instant petition that the beneficiary is coming to the United States in order to open a new office, the director erred in applying the new office regulations at 8 C.F.R. §214.2 (l)(3)(v)(C) to the petitioner in this matter. The petitioner may not be granted a second "new office" L-1A visa approval. The L-1A nonimmigrant visa is not an entrepreneurial visa classification that would allow an alien a prolonged stay in the United States in a non- managerial or non-executive capacity to start up a new business. The only provision that allows for the extension of a "new office" visa petition requires the petitioner to demonstrate that it is staffed and has been "doing business" in a regular, systematic, and continuous manner for the previous year. Therefore, the AAO will adjudicate using those regulations applicable to a petitioner applying for an extension of a new office. See 8 C.F.R. 214.2(l)(14)(ii).
  • 181. To obtain a pdf version of this document, e-mail: joseph.whalen774@gmail.com Page 181 AAO Non-Precedent L-Intracompany Transferee Decisions of 2012 Link to Decision Result, Excerpts, or Commentary Dec052012_05D7101.pdf __________ The director reasoned that the petitioner had not shown that the beneficiary would supervise subordinate managers, professionals or supervisors and therefore that he did not qualify as a personnel manager under the regulations. Further, the director concluded that the record failed to establish that the beneficiary would be functioning at a senior level within a complex organizational hierarchy in order to qualify as an executive. The director determined that, based on the lack of personnel presented on the record, it was likely the beneficiary would primarily perform non-managerial duties required for the provision of goods and services. On appeal, counsel asserts that the record does indeed establish that the beneficiary functions as a manager and executive, with a subordinate staff to relieve him from performing the sales and services of the company. Counsel further contends that the director inappropriately considered the small size of the company in making his decision. Counsel was unpersuasive. SUMMARILY DISMISSED [L1-A] This appears to be a repeat of or related to Dec052012_03D7101.pdf, above.
  • 182. To obtain a pdf version of this document, e-mail: joseph.whalen774@gmail.com Page 182 AAO Non-Precedent L-Intracompany Transferee Decisions of 2012 Link to Decision Result, Excerpts, or Commentary Dec052012_06D7101.pdf APPEAL DISMISSED [L1-A] The petitioner, a New York limited liability company, states that it is a global manufacturer and distributor of apparel. It claims to be an affiliate of [REDACTED] located in Hong Kong. The petitioner seeks an initial approval for the beneficiary for a period of three years so that he may serve as the company's Executive Vice President. The director denied the petition. concluding that the petitioner failed to establish that the beneficiary will be employed in the United States in a primarily managerial or executive capacity. The petitioner subsequently filed an appeal. The director declined to treat the appeal as a motion and forwarded the appeal to the AAO for review. On appeal, counsel for the petitioner asserts that the director misapplied applicable law and came to erroneous conclusions of fact in denying the petition. Counsel asserts that the record supports a finding that the beneficiary will be employed in an executive capacity. Counsel submits a brief in support of the appeal. Counsel was unpersuasive.
  • 183. To obtain a pdf version of this document, e-mail: joseph.whalen774@gmail.com Page 183 AAO Non-Precedent L-Intracompany Transferee Decisions of 2012 Link to Decision Result, Excerpts, or Commentary Dec072012_01D7101.pdf Dec082012_01D7101.pdf Dec082012_02D7101.pdf Dec082012_03D7101.pdf REJECTED AS UNTIMELY FILED [L1-UNSPECIFIED] The I-290B Appeal did not make it to the Service Center mailroom until 49 days after the denial was issued and the late Appeal did not warrant treatment as a Motion. REJECTED AS IMPROPERLY FILED [L1-A] [NO NEW G-28 SUBMITTED TO AAO ON APPEAL] 2ND APPEAL REJECTED AS IMPROPERLY FILED [L1-A] [AAO LACKS JURISDICTION OVER ITS OWN APPELLATE DECISIONS] MOTION REJECTED AS UNTIMELY AND UNEXCUSED [L1-A] DISCUSSION: The director of the California Service Center denied the nonimmigrant Visa petition. The Administrative Appeals Office (AAO) rejected the petitioner's subsequent appeal as untimely. The petitioner has now filed a motion to reopen based on ineffective assistance of counsel. The AAO will reject the Motion.
  • 184. To obtain a pdf version of this document, e-mail: joseph.whalen774@gmail.com Page 184 AAO Non-Precedent L-Intracompany Transferee Decisions of 2012 Link to Decision Result, Excerpts, or Commentary The petitioner filed a nonimmigrant petition seeking to extend the beneficiary's employment as an intracompany transferee pursuant to section 101(a)(15)(L) of the Immigration and Nationality Act (the Act), 8 USC § 1101(a)(15)(L). The director denied the petition on the basis that the petitioner failed to show it would employ the beneficiary in a managerial or executive capacity. The AAO rejected the petitioner's subsequent appeal as untimely. The petitioner does not dispute the untimeliness of the appeal, but now submits a motion to reopen based on a claim that it received ineffective assistance of counsel. The regulation at 8 CF.R. 103.5(a)(1) states that in order to properly file a motion to reopen or motion to reconsider, the affected party must do so within 30 days of the decision the motion seeks to reconsider or reopen. If the decision was mailed, the appeal must be filed within 33 days. See 8 CF.R. §103.8(b). The date of filing is not the date of mailing, but the date of actual receipt. See 8 CF.R. § 103.2 (a)(7)(i). With regard to motions to reopen, an untimely filing may be excused in the exercise of discretion where It is demonstrated that the delay is reasonable and beyond the petitioner's control. Id. The record indicates that the AAO issued its rejection on January 10, 2012. The AAO notified the petitioner that it had 33
  • 185. To obtain a pdf version of this document, e-mail: joseph.whalen774@gmail.com Page 185 AAO Non-Precedent L-Intracompany Transferee Decisions of 2012 Link to Decision Result, Excerpts, or Commentary days to file a motion to reopen or motion to reconsider. The U.S. Citizenship and Immigration Services (USClS) received the instant motion to reopen on February 28, 2012, 49 days after the AAO issued its rejection.FN1 The motion is therefore untimely filed. ________ FN1 The motion was initially filed with USCIS on February 17, 2012, but was rejected due to lack of signature. The petitioner then resubmitted the corrected motion, which USCIS received as properly filed on February 28, 2012. The AAO notes that, even if February 17, 2012 were used as the date of filing, the motion would still be untimely, as February 17, 2012 is 38 days after the issuance of the rejection. _________ Although the petitioner contends its appeal was untimely filed because it received ineffective assistance from its former claimed representative, it does not provide an explanation for the untimely submission of the instant motion to reopen. The petitioner therefore fails to establish that the delay in filing the motion to reopen was reasonable and beyond its control. Even if the motion to reopen were timely, however, it would fail on the merits. The petitioner concedes that its appeal was untimely filed. The motion is based on the petitioner's claim that it received "ineffective assistance of counsel." However, the petitioner acknowledges that the individual from whom it sought advice is not actually an attorney or
  • 186. To obtain a pdf version of this document, e-mail: joseph.whalen774@gmail.com Page 186 AAO Non-Precedent L-Intracompany Transferee Decisions of 2012 Link to Decision Result, Excerpts, or Commentary accredited representative. Further, the record contains no evidence that the petitioner‟s appeal was prepared and filed by the claimed representative. The appeal was not accompanied by a Form G-28, Notice of Entry as Appearance as Attorney or Representative, and the record reflects that the petitioner was self-represented prior to filing the instant motion. Assuming that the petitioner did entrust the claimed representative to file its appeal, there is no remedy available for a petitioner who assumes the risk of authorizing an unlicensed attorney or unaccredited representative to undertake representations on its behalf. See 8 C.F.R. 292.1: see also Hernandez v. Mukasey, 524 F.3d 1014 (9th Cir. 2008) ("non- attorney immigration consultants simply lack the expertise and legal and professional duties to their clients that are the necessary preconditions for ineffective assistance of counsel claims"). The AAO only considers complaints based upon ineffective assistance against accredited representatives. Cf. Matter of Lozada, 19 I&N Dec. 637 (BIA 1988), aff’d. 857 F.2d 10 (1st Cir. 1988) (requiring an appellant to meet certain criteria when filing an appeal based on ineffective assistance of counsel). As a matter of discretion, the applicant's failure to file the motion to reopen within the period allowed will not be excused as
  • 187. To obtain a pdf version of this document, e-mail: joseph.whalen774@gmail.com Page 187 AAO Non-Precedent L-Intracompany Transferee Decisions of 2012 Link to Decision Result, Excerpts, or Commentary Dec082012_04D7101.pdf Dec082012_06D7101.pdf either reasonable or beyond the control of the applicant. The untimely filing of the motion cannot be excused and the untimely filed motion must be rejected. See 8 C.F.R. § 103.3(a)(2)(v)(B)(I). DISMISSED AS MOOT [L1-A] After checking into state records for businesses in Florida, AAO discovered that the petitioning company has been administratively dissolved. A Notice of Derogatory Information (NDI) was issued but the petitioner and counsel failed to respond. DISMISSED AS MOOT [L1-A] A review of U.S. Citizenship and Immigration Services (USCIS) records indicates that the beneficiary of this petition adjusted status to that of a U.S. lawful permanent resident as of November 23, 2012. While the petitioner has not withdrawn the appeal in this proceeding, it would appear that the beneficiary is presently a lawful permanent resident. Accordingly, the AAO finds that the beneficiary‟s adjustment of status deprives this appeal of any practical significance. Considerations of prudence warrant the
  • 188. To obtain a pdf version of this document, e-mail: joseph.whalen774@gmail.com Page 188 AAO Non-Precedent L-Intracompany Transferee Decisions of 2012 Link to Decision Result, Excerpts, or Commentary Dec082012_07D7101.pdf dismissal of the appeal as moot. See Matter of Luis, 221&N Dec. 747. 753 (BIA 1999). APPEAL DISMISSED [L1-A] The petitioner, an Illinois corporation, operates a supermarket. It states that it is a subsidiary of Kushee Distributors, located in India. The petitioner has employed the beneficiary in the position of managing director since July 2006 and now requests a three year extension or his L-1A status. The director denied the petition, concluding that the petitioner failed to establish: (1) that it will employ the beneficiary in a qualifying managerial or executive capacity; and (2) that it maintains a qualifying relationship with the beneficiary‟s foreign employer. * * * * * On appeal, counsel for the petitioner asserts that the director's conclusions were contrary to the evidence submitted and therefore, erroneous. Counsel asserts that the beneficiary is employed by the U.S. entity in an executive capacity and that he is the sole owner of both the U.S. and foreign entities, thus establishing the required qualifying relationship. * * * * * The director denied the petition concluding that the petitioner failed to
  • 189. To obtain a pdf version of this document, e-mail: joseph.whalen774@gmail.com Page 189 AAO Non-Precedent L-Intracompany Transferee Decisions of 2012 Link to Decision Result, Excerpts, or Commentary establish that the U.S. and foreign entities are qualifying organizations. The director's finding was based on the petitioner's failure to establish that the claimed shareholder actually contributed the money to purchase the company's common stock. In addition, the director found that the petitioner provided contradictory evidence which further confuses the company's stock issuance claims. The director noted that, despite the petitioner's initial claims that the company is wholly owned by, [REDACTED], the stock certificates submitted in response to the RFE indicate that the beneficiary owns the U.S. Company. Finally, the director determined that the $30.000 in wire transfers from [REDACTED], represents "a personal loan to [the beneficiary]" and not funding from the claimed foreign parent company. * * * * * Upon review, the petitioner has not established that the petitioner and the foreign entity have a qualifying relationship. The regulation and case law confirm that ownership and control are the factors that must be examined in determining whether a qualifying relationship exists between United States and foreign entities for purposes of this visa classification. Matter of Church Scientology International, 19 I&N Dec. 593 (BIA 1988); see also Matter of
  • 190. To obtain a pdf version of this document, e-mail: joseph.whalen774@gmail.com Page 190 AAO Non-Precedent L-Intracompany Transferee Decisions of 2012 Link to Decision Result, Excerpts, or Commentary Siemens Medical Systems, Inc., 19 I&N Dec. 362 (BIA 1986); Matter of Hughes, 18 I&N Dec. 289 (Comm'r 1982). In the context of this visa petition, ownership refers to the direct or indirect legal right of possession or the assets of an entity with full power and authority to control; control means the direct or indirect legal right and authority to direct the establishment, management, and operations of an entity. Matter of Church Scientology International, 19 I&N Dec. at 595. As general evidence of a petitioner's claimed qualifying relationship, stock certificates alone are not sufficient evidence to determine whether a stockholder maintains ownership and control of a corporate entity. The corporate stock certificate ledger, stock certificate registry, corporate bylaws, and the minutes of relevant annual shareholder meetings must also be examined to determine the total number of shares issued, the exact number issued to the shareholder, and the subsequent percentage ownership and its effect on corporate control. Additionally, a petitioning company must disclose all agreements relating to the voting of shares, the distribution of profit, the management and direction of the subsidiary, and any other factor affecting actual control of the entity. See Matter of Siemens Medical Systems, Inc., 19 I&N Dec. 362 (BIA 1986), supra. Without full
  • 191. To obtain a pdf version of this document, e-mail: joseph.whalen774@gmail.com Page 191 AAO Non-Precedent L-Intracompany Transferee Decisions of 2012 Link to Decision Result, Excerpts, or Commentary Dec082012_08D7101.pdf disclosure of all relevant documents, USCIS is unable to determine the elements of ownership and control. Here, there are a number of inconsistencies and omissions in the record which raise questions regarding the existence of the claimed qualifying relationship. MOTION GRANTED, DIRECTOR’S DENIAL AND PROIR AAO APPEAL DISMISSAL AFFIRMED [L1-A] The AAO will grant the petitioner's motion and reconsider the petitioner's claim that the beneficiary qualifies 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 position description that clearly explains the duties to he performed in managing the essential function, i.e. identifies the function with specificity, articulates the essential nature
  • 192. To obtain a pdf version of this document, e-mail: joseph.whalen774@gmail.com Page 192 AAO Non-Precedent L-Intracompany Transferee Decisions of 2012 Link to Decision Result, Excerpts, or Commentary 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(l) (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); see also Matter of Church Scientology, 19 I&N Dec. 593, 604 (Comm'r 1988). In this matter, the petitioner has not provided evidence that the beneficiary manages an essential function. On motion, the petitioner presents for the first time a detailed description of the "supply chain" function claimed to be managed by the beneficiary. A review of the record reflects that the petitioner made no prior reference to this specific function or the beneficiary's management of such function. Therefore, the petitioner has not supported a claim that the AAO's decision was incorrect at the time of the initial decision. 8 C.F.R. § 103.5(a)(2).
  • 193. To obtain a pdf version of this document, e-mail: joseph.whalen774@gmail.com Page 193 AAO Non-Precedent L-Intracompany Transferee Decisions of 2012 Link to Decision Result, Excerpts, or Commentary Dec082012_09D7101.pdf Dec082012_10D7101.pdf DISMISSED AS MOOT [L1-A] DISCUSSION: The nonimmigrant visa petition was denied by the Director, California Service Center. It then came before the Administrative Appeals Office (AAO) on appeal. On October 3, 2012, this office provided the petitioner with notice of adverse information and afforded the petitioner an opportunity to provide rebuttal evidence. The petitioner claims to be a corporation organized under the laws of the State of California. It seeks to employ the beneficiary as President and CEO. Accordingly, the petitioner endeavors to classify the beneficiary as a nonimmigrant alien pursuant to section 101(a)(15)(L) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1101(a)(15)(L). Pursuant to 8 C.F.R. § 103.2(b)(16)(i), this office notified the petitioner that, according to the records at the California website, the petitioner is currently dissolved. See Website of California Secretary of State, available at http://kepler.sos.ca.gov/cbs.aspx (accessed September 28, 2012). APPEAL DISMISSED [L1-A] The petitioner, a Pennsylvania limited liability company, states that it provides
  • 194. To obtain a pdf version of this document, e-mail: joseph.whalen774@gmail.com Page 194 AAO Non-Precedent L-Intracompany Transferee Decisions of 2012 Link to Decision Result, Excerpts, or Commentary export management and business development services to United States and offshore manufacturers in the fields of educational and scientific equipment and instruments. It claims to be a branch office of [REDACTED], located in Pakistan. The petitioner seeks to employ the beneficiary in the position of Director of Sales and Marketing and requested that the beneficiary he granted a change of nonimmigrant status from H-1B to L-1A. The director denied the petition concluding that the petitioner failed to establish: (1) that the foreign entity employed the beneficiary for one continuous year within the three years preceding the filing of the petition; (2) that the petitioner and the foreign entity have a qualifying relationship; and (3) that the beneficiary would be employed in the United States in a qualifying managerial or executive capacity. The director further found that the petitioner failed to establish that the beneficiary was maintaining H-1B or any other valid nonimmigrant status at the time the petition was filed and therefore would be ineligible for a change of status even if the petition could be approved. The petitioner subsequently filed an appeal. The director declined to treat the appeal as a motion and forwarded the appeal to the AAO. On appeal, the petitioner asserts that the director's decision contained several factual errors.
  • 195. To obtain a pdf version of this document, e-mail: joseph.whalen774@gmail.com Page 195 AAO Non-Precedent L-Intracompany Transferee Decisions of 2012 Link to Decision Result, Excerpts, or Commentary Dec102012_01D7101.pdf The petitioner asserts: (1) that the beneficiary has been employed by the foreign entity as a consultant since 2007; (2) that the evidence shows that all of the petitioner's exports are shipped to the foreign entity or its customers, thus establishing the qualifying relationship; and (3) that the beneficiary will be employed in an "executive managerial" capacity. The petitioner further emphasizes that the service center accepted its late-filed request for a change of status based on the beneficiary's claim of extreme hardship and thereby already determined that he was in status. The petitioner submits a brief and additional evidence in support of the appeal. APPEAL DISMISSED [L1-A] The petitioner filed this nonimmigrant petition seeking to extend the beneficiary's employment as an L-1A nonimmigrant intracompany transferee pursuant to section 101(a)(15)(L) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1101(a)(15)(L). The petitioner, a Florida corporation established in March 2005, states that it is in the business of freight forwarding. The petitioner claims to have a qualifying relationship with S&S Freight Forwarders located in Kingston, Jamaica. The petitioner has employed the beneficiary as its managing director/general manager since December 2005, and now seeks to
  • 196. To obtain a pdf version of this document, e-mail: joseph.whalen774@gmail.com Page 196 AAO Non-Precedent L-Intracompany Transferee Decisions of 2012 Link to Decision Result, Excerpts, or Commentary extend his L-I A status for two additional years. The director denied the petition, concluding that the petitioner failed to establish that it will employ the beneficiary in a primarily managerial or executive capacity. The director also noted that the petitioner provided insufficient evidence that it maintains sufficient physical premises to accommodate its employees and the services that the petitioner would be providing. * * * * * At the time of filing, the petitioner stated it had four employees including the beneficiary. The job descriptions submitted by the petitioner do not establish that any of the employees working for the beneficiary are professional-level employees.FN1 __________ FN1 In evaluating whether the beneficiary manages professional employees, the AAO must evaluate whether the subordinate positions require a baccalaureate degree as a minimum for entry into the field of endeavor. Section 101(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." The term “profession" contemplates knowledge or learning, not merely skill, of an advanced type in a given field gained by a prolonged course of specialized instruction and study of at least baccalaureate level, which is a realistic prerequisite to entry into the
  • 197. To obtain a pdf version of this document, e-mail: joseph.whalen774@gmail.com Page 197 AAO Non-Precedent L-Intracompany Transferee Decisions of 2012 Link to Decision Result, Excerpts, or Commentary Dec132012_01D7101.pdf particular field of endeavor. Matter of Sea, [Inc.], 19 I&N Dec. 817 (Comm'r 1988); Matter of Ling, 13 I&N Dec. 35 (R.C. 1968); Matter of Shin, 11 I&N Dec. 686 (D.D. 1966). Therefore, the AAO must focus on the level of education required by the position, rather than the degree held by subordinate employee. The possession of a bachelor's degree by a subordinate employee does not automatically lead to the conclusion that an employee is employed in a professional capacity as that term is defined above. In the instant case, the petitioner has not established that a bachelor‟s degree is required for any of the positions subordinate to the beneficiary's. SUMMARILY DISMISSED [L1-A] The petitioner seeks to employ the beneficiary in the position of Managing Director for two years as an L-1A nonimmigrant intracompany transferee pursuant to section 101 (a)(15)(L) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1101(a)(15)(L). The Director, Vermont Service Center, initially approved the petition on May 8, 2009. On August 9, 2011, the director issued a Notice of Intent to Revoke (NOIR) the approval of the petition, to which the petitioner provided a timely response, The director issued a final decision on November 11, 2011, concluding that the petitioner failed to establish that the beneficiary would be employed in a managerial or executive capacity, pointing
  • 198. To obtain a pdf version of this document, e-mail: joseph.whalen774@gmail.com Page 198 AAO Non-Precedent L-Intracompany Transferee Decisions of 2012 Link to Decision Result, Excerpts, or Commentary Dec142012_01D7101.pdf to the petitioner's failure to show payments made to its claimed employees, including the beneficiary, As such, the director revoked the approval of the petition and the petitioner subsequently appealed the revocation. The director declined to treat the appeal as motion and now the matter is before the AAO. APPEAL DISMISSED [L1-A] The petitioner, a Colorado limited liability company established in July 2010, engages in automobile sales and rentals, and was established for the purpose of buying the assets of Affordable Auto LLC, a distressed company. It claims to be an affiliate of [REDACTED], located in Mexico. The petitioner seeks to employ the beneficiary as the general manager of its new office in the United States for a period of one year. The director denied the petition, concluding that the petitioner failed to establish that it had a qualifying relationship with the beneficiary's foreign employer, [REDACTED]. * * * * * Beyond the decision of the director, the rec0rd reflects that the petitioner failed to establish that the beneficiary would be employed in the United Stat", in a primarily managerial capacity within one year.FN3
  • 199. To obtain a pdf version of this document, e-mail: joseph.whalen774@gmail.com Page 199 AAO Non-Precedent L-Intracompany Transferee Decisions of 2012 Link to Decision Result, Excerpts, or Commentary Dec172012_01D7101.pdf ________ FN3 The petitioner only asserts that the beneficiary will be employed in a managerial capacity. The petitioner does not claim that it will employ the beneficiary in an executive capacity. Therefore, the AAO will only analyze the beneficiary‟s employment in a managerial capacity. The petitioner must specifically state whether the beneficiary is primarily employed in a managerial or executive capacity. A petitioner cannot claim that some of the duties of the position entail executive responsibilities, while other duties are managerial. A beneficiary may not claim to be employed as a hybrid "executive/manager" and rely on partial sections of the two statutory definitions. APPEAL DISMISSED [L1-A] The petitioner, a Florida corporation, states that it operates an import/export business. It claims to be a subsidiary of Suplidora Industrial Ordaz, C.A ., located in Venezuela. The beneficiary was previously granted one year in L-1A status in order to open or be employed in a new office in the United States as the petitioner's general operations manager. The petitioner now seeks to extend her status for a period of two years. The director denied the petition concluding that the petitioner failed to establish: (1) that the foreign entity employed the beneficiary in a primarily managerial or executive capacity; and (2) that the U.S. company is doing business. The director also noted an inconsistency
  • 200. To obtain a pdf version of this document, e-mail: joseph.whalen774@gmail.com Page 200 AAO Non-Precedent L-Intracompany Transferee Decisions of 2012 Link to Decision Result, Excerpts, or Commentary Dec172012_02D7101.pdf Dec192012_01D7101.pdf Dec192012_02D7101.pdf in the record pertaining to the petitioner‟s levels as of the date of filing. DISMISSED AS MOOT [L1-UNSPECIFIED] A review of U.S. Citizenship and Immigration Services records indicates that this beneficiary is also the beneficiary of an approved immigrant petition and has adjusted status to that of a U.S. permanent resident as of March 6, 2012. While the petitioner has not withdrawn the appeal in this proceeding, it would appear that the beneficiary is presently a permanent resident and the issues in this proceeding are moot. REJECTED AS UNTIMELY FILED [L1-UNSPECIFIED] Initially sent the I-290B DIRECTLY to AAO which returned it to be re- filed at the correct location as previously instructed. SUMMARILY DISMISSED [L1-A] The petitioner, a Florida corporation, states that it is engaged in maritime and door-to-door international shipping. The petitioner claims to be a subsidiary of Cooperativa Constructora Los Celtas 17, R.L., located in Venezuela. The petitioner
  • 201. To obtain a pdf version of this document, e-mail: joseph.whalen774@gmail.com Page 201 AAO Non-Precedent L-Intracompany Transferee Decisions of 2012 Link to Decision Result, Excerpts, or Commentary seeks to employ the beneficiary as the Chief Financial Officer for a period of two years. On July 26, 2011, the director denied the petition concluding that the petitioner failed to establish that the beneficiary's position in the United States will be in a primarily managerial or executive capacity. In denying the petition, the director found that the petitioner's organizational chart and list of job descriptions for the U.S. company's employees raises discrepancies and doubts as to the beneficiary's actual duties and role in the U.S. company. The director noted that although the petitioner claims that the beneficiary is in charge of all financial matters for the U.S. company, the company's accountant does not report to the beneficiary, but to the company's president/CEO and is at an equal level with the beneficiary. The director also noted that one employee is listed as the export manager's assistant on the organizational chart, but is listed as the export manager in the job descriptions. Additionally, the petitioner submitted two different organizational charts with the petition. The first organizational chart illustrates that the beneficiary as chief financial officer, the marketing manager, and the accountant are all at an equal level reporting to the president/CEO. In that first organizational chart, the
  • 202. To obtain a pdf version of this document, e-mail: joseph.whalen774@gmail.com Page 202 AAO Non-Precedent L-Intracompany Transferee Decisions of 2012 Link to Decision Result, Excerpts, or Commentary Dec192012_03D7101.pdf beneficiary supervises the operations manager, who supervises the export manager, who then supervises an assistant. The second organizational chart illustrates that the beneficiary as chief financial officer is the only employee who reports directly to the CEO, and the operations manager, who supervises the export manager and assistant, marketing manager, and accountant report directly to the beneficiary. APPEAL DISMISSED [L1-A] The petitioner, a Colorado corporation, engages in the business of marketing and business management services. It claims to be an affiliate of Neocom C.A. (the "foreign entity"), located in Venezuela. The beneficiary previously granted L-1A status for a one-year period in order to open a new office in the United States. The petitioner now seeks to extend the beneficiary's status and employment as its Chief Executive Officer (CEO) for three additional years. The director denied the petition, concluding that the petitioner failed to establish that the beneficiary would be employed in the United States in a primarily managerial or executive capacity. In denying the petition, the director concluded that the beneficiary has been and will be performing many aspects of the day-to-day operations of
  • 203. To obtain a pdf version of this document, e-mail: joseph.whalen774@gmail.com Page 203 AAO Non-Precedent L-Intracompany Transferee Decisions of 2012 Link to Decision Result, Excerpts, or Commentary the business, noting that the beneficiary is the petitioner‟s sole employee. The petitioner subsequently filed an appeal. The director declined to treat the appeal as a motion and forwarded the appeal to the AAO. On appeal, counsel for the petitioner asserts that the director erred by failing to consider the foreign entity's employees under the beneficiary‟s supervision. Counsel asserts that the director erred in concluding that the beneficiary's actions to create an enterprise and bring it to substantial revenue are not executive or managerial in nature. Counsel also asserts in the alternative that the beneficiary "be afforded the opportunity to be given one more year in L-1A status as a start-up office enterprise." Counsel submits a brief and additional evidence on appeal. BONUS BLURB: INA §101(a)(44)(A)(iii); 8 USC §1101(a)(44) (A)(iii). See Matter of Irish Dairy Board, Inc., A28-845-421 (AAU Nov. 16, 1989) ("[T]he sole employee of a firm may be classified as an executive in certain circumstances provided his primary function is to plan, organize, direct and control an organization‟s major functions through other employees. No discussion of the size or staffing level of the organization is included in the definition of the term „executive‟." Note that this decision was based on the pre-Immigration Act of 1990 definition of "executive," which was analogous to the current definition of "manager.") find this as note XXXV http://www.ilw.com/articles/2003,0421- Paparelli.shtm
  • 204. To obtain a pdf version of this document, e-mail: joseph.whalen774@gmail.com Page 204 AAO Non-Precedent L-Intracompany Transferee Decisions of 2012 Link to Decision Result, Excerpts, or Commentary Dec202012_01D7101.pdf REJECTED AS UNTIMELY [L1-A] Initially sent the I-290B DIRECTLY to AAO which returned it to be re- filed at the correct location as previously instructed. THE FOLLOWING BONUS ARTICLE IS POSTED AT: http://www.slideshare.net/BigJoe5/the-new-specialized-knowledge-aao-decision-format Also, it was published in Immigration Daily from ILW.com The New L1-B Specialized Knowledge AAO Decision Format By Joseph P. Whalen (May 7, 2013) Upon perusing the AAO Administrative Decisions in the L-1 Intracompany Transferee category covering the past few years (2011 forward), I only found maybe three decisions addressing the L1-B, Specialized Knowledge non-immigrant visa. Thanks to various practitioners posting victorious cases very recently decided by AAO (in March, April and May 2013), we can see a distinct change in the presentation of the statutory definition and maybe a re-interpretation of specialized knowledge. Some might argue that second point and I invite them to do just that, I’d enjoy the dialogue. Here is the new verbiage in the analysis section that I heartily welcome: “In order to establish eligibility, the petitioner must show that the individual will be employed in a specialized knowledge capacity. 8 C.F.R. § 214.2(l)(3)(ii). The statutory definition of specialized knowledge at Section 214(c)(2)(B) of the Act is comprised of two equal but distinct subparts. First, an individual is considered to be employed in a capacity involving specialized knowledge if that person “has a special knowledge of the company product and its application in international markets.” Second, an individual is considered to be employed in a capacity involving specialized knowledge if that person “has an advanced level of knowledge of processes and procedures of the company.” See also 8 C.F.R. § 214.2(l)(1)(ii)(D). The petitioner may establish eligibility by submitting evidence that the beneficiary and the proffered position satisfy either prong of the definition.” In the present case, the petitioner’s claims are based on the first/second prong, asserting that the beneficiary has (a) a special knowledge of the company’s product and their application in international markets -OR- (b) an advanced knowledge of the company’s processes and procedures..... Earlier verbiage was stuck in a rut and did not even mention the statutory definition, instead sticking solely to discussion of the regulatory definition and evidentiary criteria. This step backward is a good thing as USCIS like INS before it was too in love with the regulations even when those regulations did not keep up with statutory changes. There are many obsolete and ultra vires regulations still guiding the everyday work of adjudicators to the detriment of all. Even District Court Judges were stuck in that rut, merely parroting the regulations supplied to it in agency briefs. Only a handful of more conscientious Judges were doing the legwork and homework to find those obsolete and ultra vires regulations. Good show to AAO on taking a proactive approach in this matter.
  • 205. To obtain a pdf version of this document, e-mail: joseph.whalen774@gmail.com Page 205 AAO Non-Precedent L-Intracompany Transferee Decisions of 2012 Link to Decision Result, Excerpts, or Commentary There seemed to be a moratorium on deciding “specialized knowledge” petitions for a while. It now looks like the dam has burst or the floodgates have opened. To this point, the newly re-formatted decisions that have been made available (to me anyway) are sustained appeals. I am eager to see how AAO upholds a denial. Will it perform a de novo review under the re-worked approach? I request any examples. That’s my two-cents, for now. If you would like your own copy of this document contact me at: joseph.whalen774@gmail.com