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Intracompany Transferee AAO Decisions 2011 as of June 11, 2012


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  • 1. Intracompany Transferee AAO Decisions 2011 as of June 11, 2012 By Joseph P. WhalenApr062011_01D7101.pdf Summarily DismissedThe director denied the petition based on two adverse findings: 1) the petitioner failed to establish that the beneficiary would be employed in the United States in a managerial or executive capacity; and 2) the record lacks evidence to establish that the petitioner was doing business at the time of filing the petition.No brief or supplemental evidence received after 16 months and the I-290B did notidentify any specific alleged error in a finding-of-fact or application of law.Apr252011_01D7101.pdf Appeal Dismissed“The petitioner filed this nonimmigrant petition seeking to transfer the beneficiaryas an L-I A nonimmigrant Manager, Sales & Purchase, 1 pursuant to section101(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 is engaged inretail trade and investment. It claims to be an affiliate of Ghazi Service Station,located in Karachi, Pakistan.The director denied the petition on September 17, 2008, concluding that thepetitioner failed to establish that the beneficiary would be employed in a primarilymanagerial or executive capacity. * * * * *“... [T]he claim that the petitioner primarily employs cashiers and restaurantpersonnel, the AAO finds it reasonable to question whether a company thatallegedly owns a truck stop restaurant and several gas stations/convenience stores1 FN1 in Original: The petitioner and counsel alternate between referring to the profferedposition as a Manager, Sales & Purchasing and a Finance Manager. In the Form 1-129, theposition is titled Manager, Sales & Purchasing, but in the support letter submitted with thepetition, the petitioner refers to the proffered position as a Finance Manager. On appeal, counselrefers to the proffered position as a Sales and Purchasing Manager ("Finance Manager"). As thepetitioner indicates in the Fonn 1-129 that the position title is Manager, Sales & Purchasing, theAAO will refer to the proffered position by this name.
  • 2. would plausibly require a Manager, Sales and Purchasing in addition to a Directorof Finance, a Managing Director, and an Operations Manager. Doubt cast on anyaspect of the petitioners proof may, of course, lead to a reevaluation of thereliability and sufficiency of the remaining evidence offered in support of the visapetition. Matter of Ho, 19 I&N Dec. 582, 591 (BIA 1988).”Apr282011_01D7101.pdf Withdrawn & RemandedThe primary issue raised by the petitioner on appeal is whether the director erredby adjudicating the instant petition as one filed on behalf of a beneficiary who willbe employed in a managerial or executive capacity. * * * * *Based on the petitioners statements on Form I-129, the director improperlydetermined that the petitioner filed an L-1A classification petition. The directorthen issued a nine-page request for evidence (RFE) on February 26, 2009 in whichhe failed to acknowledge the petitioners filing of an L-lB classification petition,and instead requested certain evidence that is only applicable to L-1A managersand executives and new office petitions involving managers and executives. Thedirector denied the petition solely on the grounds that the petitioner failed to meetis burden to establish that the beneficiary has been and would be employed in aprimarily managerial or executive capacity.The AAO concurs with counsels contention that the director clearly erred byfailing to adjudicate the petition according to the statutory and regulatoryprovisions applicable to the requested L-1B classification. The petitioner bears theburden of proof with respect to the specific visa classification that they request onthe Form I-129 and cannot be required to meet the burden of proof for analternative classification. U.S. Citizenship and Immigration Services (USCIS) willonly consider the visa classification that the petitioner annotates on the petition,and has no authority to consider other classifications in the alternative.FN2Here, the director failed to consider the beneficiarys eligibility under the requestedL-1B classification, and had no authority to adjudicate the petition under analternate classification. The director failed to reach any conclusion regarding thebeneficiarys eligibility under the requested classification, and instead determinedthat the beneficiary did not qualify under an alternative classification which isgoverned by different statutory and regulatory provisions and evidentiaryrequirements.FN3 * * * * *
  • 3. FN2 The Ninth Circuit has determined that once USCIS concludes that an alien isnot eligible for the specifically requested classification, the agency is not requiredto consider, sua sponte, whether the alien is eligible for an alternate classification.Brazil Quality Stones. Inc .. v. Chertoff, Slip Copy, 2008 WL 2743927 (9th Cir.July 10, 2008).FN3 The directors decision, on Page 6, states: "[E]ven if the petitioner would claimthat the beneficiarys position is to that of a specialized knowledge. [sic] Theresnothing in the record that the beneficiary has specialized knowledge. Customerservice, speaking and writing in Danish language does not constitute specializedknowledge by regulation." The AAO cannot find that three sentences within aseven-page decision constitutes a proper adjudication of the petitioners request forL-l B classification. When denying a petition, a director has an affirmative duty toexplain the specific reasons for the denial; this duty includes informing a petitionerwhy the evidence failed to satisfy its burden of proof pursuant to section 291 of theAct, 8 U.S.C. § 1361. See 8 C.F.R. § 103.3(a)(1)(i).Apr282011_02D7101.pdf Appeal Dismissed“.... The petitioner seeks to employ the beneficiary in the position of president ofits new office in the United States for a period of three years.FN1The director denied the petition, concluding that the petitioner failed to establishthat it had secured sufficient physical premises to house the new office, as requiredby 8 C.F.R. § 214.2(l)(3)(v)(A).” * * * * *FN1 Pursuant to 8 C.F.R. § 214.2(l)(7)(i)(A)(3), if the beneficiary is coming to theUnited States to open or be employed in a new office, the petition may beapproved for a period not to exceed one year. * * * * *At the time of filing, the petitioner submitted a "Standard Service Agreement"between the petitioners foreign affiliate and Broadway Southern CaliforniaExecutive Suites LLC, operating as "Synergy Workplaces." According to the termsof the agreement, the foreign entity licensed the use of office number 263 for aperiod of three months commencing on March 1, 2009. The company is required topay a monthly fee of $300.00 for the use of the office, and did not request anyadditional services such as telephone sets, a fax line, Internet access, parking, orcall forwarding. The agreement provides for the use of one office with oneoccupant. According to the terms stated, the agreement lasts for the period stated
  • 4. and will automatically renew for successive periods for the same duration as theinitial term. * * * * *The AAO notes that some of the evidence requested by the director, such asphotographs of employees working in the office, photographs of company logosand signs displayed on the building, proof of occupancy, and utility bills, couldnot reasonably be provided prior to the beneficiarys arrival in the UnitedStates. However, the director specifically requested that the petitioner submit anoriginal letter from the lessor, as well as a layout showing the square footage of thepetitioners leased space. The petitioner failed to provide any of this evidence inresponse to the RFE, and did not explain why such evidence would be unavailable.Failure to submit requested evidence that precludes a material line of inquiry shallbe grounds for denying the petition. 8 C.F.R. § 103 .2(b )(14). As noted above, thefloor plan submitted does not clearly identify the petitioners "Office #263."Further, the fact that the petitioner did not request telephones, a fax machine, orInternet access for its office raises questions as to whether the petitioner intends tooccupy the office to operate the intended business.Moreover, the petitioner has failed to submit a business plan or any otherdocumentary evidence establishing the companys anticipated space requirementsfor its import and export business. While the petitioner indicates that it intends tooutsource the warehousing function, it also indicates that it intends to commencebusiness operations with a staff of six people and it has leased an office thatappears to be suitable for a single occupant. Counsels assertion that the beneficiaryintends to expand operations upon arrival in the United States is insufficient.Without documentary evidence to support the claim, the assertions of counsel willnot satisfy the petitioners burden of proof. The unsupported assertions of counseldo not constitute evidence. Matter of Obaigbena, 19 I&N Dec. 533, 534 (BIA1988); Matter of Laureano, 19 I&N Dec. I (BIA 1983); Matter of Ramirez-Sanchez, 17 I&N Dec. 503, 506 (BIA 1980). .....”Apr282011_03D7101.pdf Appeal DismissedThe director denied the petition, concluding that the petitioner failed to establishthat the beneficiary will be employed in the United States in a primarily managerialor executive capacity. * * * * *As a preliminary matter, the AAO notes that the director commented that theUnited States entity is considered a "new office" for immigration purposes. The
  • 5. evidence of record indicates that the petitioning company was established as alimited partnership in Texas in 2005, and has been operating a gas station andconvenience store known as "Highway Speed Mart" since December of that year.The petitioner indicates that the beneficiarys foreign employer acquired a 50percent ownership interest in the petitioning company in December 2008. Thepetitioner filed the Form 1-129, Petition for a Nonimmigrant Worker, on January28, 2009.Pursuant to 8 C.F .R. § 214.2(l)(1)(ii)(F), "new office" means an organizationwhich has been doing business in the United States through a parent, branch,affiliate or subsidiary for less than one year.The director determined that the petitioning company is considered a "new office"based on the change in ownership structure, notwithstanding the fact that it hasbeen operating in the United States for more than three years at the time of filing.Counsel asserts that the "new office" regulations should not apply when a foreignentity acquires a controlling interest in a fully operational subsidiary in the UnitedStates.Upon review, we concur that the petitioning company should not be considered a"new office," and the directors comments in this regard will be withdrawn. Uponreview of the directors decision in its entirety, we find the error harmless, as thedirector does not appear to have applied the new office regulations at 8 C.F.R. §214.2(1)(3)(v) to the facts of this case. * * * * *Thus, while several of the duties generally described by the petitioner wouldgenerally fall under the definitions of managerial or executive capacity, the lack ofspecificity raises questions as to the beneficiarys actual proposed responsibilities.Overall, the position description alone is insufficient to establish that thebeneficiarys duties would be primarily in a managerial or executive capacity.Beyond the required description of the job duties, USCIS reviews the totality of therecord when examining the claimed managerial or executive capacity of abeneficiary, including the petitioners organizational structure, the duties of thebeneficiarys subordinate employees, the presence of other employees to relieve thebeneficiary from performing operational duties, the nature of the petitionersbusiness, and any other factors that will contribute to a complete understanding ofa beneficiarys actual duties and role in a business. * * * * *While the petitioner has submitted a proposed organizational chart depicting fourtiers of proposed managerial employees supervising a staff of "cashiers/clerks," a
  • 6. two-person accounting department, and a purchase clerk, the petitioner has notshown how a single gas station and convenience store would support thisstaffing structure. The petitioners stated need for four or more managers andas few as one or two cashiers is not entirely plausible given the nature of thepetitioners business and the petitioners claim that it will be open for businessseven days per week for 12 hours per day. It appears that all current employeeswork at the petitioners store, and no office or other location has been documented.While it has assigned many of its claimed employees managerial job titles, it isreasonable to believe that the petitioner actually requires more lower-levelemployees, such as cashiers and stockers, than it does managers, particularly inlight of the most recent state quarterly wage report, which suggests that themajority of the employees work on a part-time basis.May112011_01D7101.pdf Denial Withdrawn, Appeal Sustained“.... The petitioner has employed the beneficiary in L-IA status since April 2006and seeks to extend his status for two additional years so that he may continue toserve in the position of Business Relationship Manager.The director denied the petition concluding that the petitioner did not establish thatthe beneficiary would be employed by the U.S. entity in a primarily managerial orexecutive capacity.” * * * * *“.... On appeal, the petitioner asserts that the beneficiary supervises, directly andindirectly, a total of 191 professional employees who relieve him from performingnonmanagerial tasks, and is responsible for managing a client account thatgenerates over $12 million annually. The petitioner contends that the profferedposition fulfills all requirements for a position in a managerial capacity as set forthin the statute and regulations.” * * * * *“Upon review, the petitioners assertions are persuasive. The AAO finds sufficientevidence to establish that the beneficiary will be employed in a primarilymanagerial capacity. The directors determination appears to be based in parton the directors pre-conceived impression of what duties are typicallyperformed by project managers or business relationship managers for ITworkers rather than on the evidence submitted by the petitioner. The directorshould not hold a petitioner to his undefined and unsupported view of thestandard duties of an occupation in making a determination as to whether thebeneficiary will be employed in a primarily managerial or executive capacity.
  • 7. The director should instead focus on applying the statute and regulations tothe facts presented by the record of proceeding.Upon review, the AAO finds that the evidence submitted establishes that thebeneficiary supervises and controls the work of professional employees andpossesses authority to recommend personnel actions for employees under hissupervision. See sections 101 (a)(44)(A)(ii) and (iii) of the Act.Furthermore, the AAO concurs with the petitioners assertion that thebeneficiarys overall management of a large group of on-site/off-shore projectsfor a single client, within the context of the facts presented in this matter, canbe equated to managing a subdivision, function or component of theorganization. See section 101 (a)( 44)(A)(i) of the Act. The client account forwhich the beneficiary is responsible generates significant revenue. Further, thebeneficiary does not directly oversee such projects, but rather oversees subordinateproject managers, who, in turn, supervise the technical resources. Finally, the AAOis satisfied that the beneficiary exercises discretion over the day-to-day operationsof projects under his responsibility, as required by section 101(a)(44)(A)(iv) of theAct.While the beneficiary will undoubtedly be required to apply his technical expertisein carrying out his job duties, the AAO is persuaded that the vast majority of theday-to-day non-managerial tasks required to produce the products andprovide services for the client are carried out by the beneficiarys subordinateproject managers and technical staff. The petitioner need only establish that thebeneficiary devotes more than half of his time to managerial duties.In visa petition proceedings, the burden of proving eligibility for the benefit soughtremains entirely with the petitioner. Section 291 of the Act, 8 U.S.C. § 1361. Here,the petitioner has sustained that burden. Accordingly, the directors decision datedMarch 9, 2009 is withdrawn.”May112011_04D7101.pdf Rejected as Untimely“The record indicates that the director issued the adverse decision on April 2, 2009.It is noted that the director properly gave notice to the petitioner that it had 33 daysto file the appeal. The petitioner filed the appeal with the California Service Centeron May 6, 2009, 34 days after the directors decision was issued.” * * * * *
  • 8. “..... The instant appeal consists of the Form I-290B, Notice of Appeal or Motion,on which the petitioner stated: "I will attached eveidence [sic] that support myalegations [sic]. Thanks." The petitioner indicated on the Form I-290B that itwould send a brief and/or evidence to the AAO within 30 days. As of this date, nobrief or evidence has been submitted.”Jul112011_01D7101.pdf Dismissed as Moot“A review of U.S. Citizenship and immigration Services (USCIS) records indicatesthat the beneficiary of this petition was also the beneficiary of an approved L-l Bclassification nonimmigrant petition filed shortly after the denial of this petition,and is currently the beneficiary of an approved L-l A classification petition filed bythe instant petitioner in March 2011. While the petitioner has not withdrawn theappeal in this proceeding, it would appear that the beneficiary is presentlyemployed by the petitioner in L-l classification and the issues in this proceedingare moot. Therefore, this appeal is dismissed.”Jul142011_01D7101.pdf Rejected as Untimely“....The beneficiary has been employed as the petitioners president and chiefexecutive officer since 2005and the petitioner now seeks to extend his L1-A statusfor three additional years.The director denied the petition based on three independent and alternativegrounds, concluding that the petitioner failed to establish: (1) that the petitioner and the foreign entity have a qualifying relationship; (2) that the beneficiary was employed by a qualifying organization abroad prior to his transfer to the United States; and (3) that the beneficiary would be employed in the United States in a primarily managerial or executive capacity under the extended petition.”Aug222011_01D7101.pdf Rejected as Untimely & Remanded“The record indicates that the service center director issued the decision on June 5,2009. It is noted that the service center director properly gave notice to thepetitioner that it had 33 days to file the appeal. Neither the Act nor the pertinentregulations grant the AAO authority to extend this time limit. It is further noted
  • 9. that the directors decision was mailed to counsel and the petitioner at their correctaddresses.Although counsel dated the Form I-290B July 13, 2009, it was not received by theservice center until August 10, 2009, or 66 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 appealmeets the requirements of a motion to reopen or a motion to reconsider, theappeal must be treated as a motion, and a decision must be made on the merits ofthe case. The official having jurisdiction over a motion is the official who made thelast decision in the proceeding, in this case the Director of the California ServiceCenter. See 8 C.F.R. § 103.5(a)(l)(ii).The matter will therefore be returned to the director. If the director determinesthat the late appeal meets the requirements of a motion, the motion shall begranted and a new decision will be issued.”[Reading between the lines and I think AAO was telling CSC to doits part and determine if late Appeals meet the requirements of aMotion BEFORE sending it to AAO.]