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L non immigrant precedent decisions 1970-1989-present

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There have been no new administrative decisions on L visas since 1989!

There have been no new administrative decisions on L visas since 1989!

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  • 1. Currently Existing “L” Visa Precedent Decisions (June 2011)1 Index to Precedent Decisions Interim Decisions 2526 to 3642This index covers Interim Decisions 2526 through 3642 distributed in loose-leaf form prior totheir publication in bound volumes and supersedes the previous index in Volume 23. SeeVolume 15 for the cumulative index to Volumes 1through 15.2INTRACOMPANY TRANSFEREE: see Nonimmigrant: specific classificationNONIMMIGRANT: intracompany transferee:  affiliate or subsidiary: o abroad, not required; #2602, 2889 o intent to establish in U.S.; #2881 o qualification by firm that is branch of foreign government; #2856 o question of; #2849, 2917, 3008, 3052  corporation as separate entity from stockholder; #2826, 2849  employment, continuous for one year: o employment as B-1 nonimmigrant in U.S. as sole qualifying experience; #2918 o experience required at time of filing; #2758  extension of stay; #3108  religious personnel, eligibility of for classification; #3052  specialized knowledge, question of; #2758, 2865, 2881, 3067  temporary period of employment, question of; #2933 Index Cumulative for Volume 1 to 15, InclusiveIntra-company transferee:  affiliate or subsidiary firm; question of; 13-647,816; 15-5  alien eligible (L) classification notwithstanding already beneficiary of approved 6th preference VP; 13-601  alien’s salary will be paid by foreign affiliate of petitioning co., eligible notwithstanding; 14-5691 See companion article to this document.2 Indices available at: http://www.justice.gov/eoir/vll/intdec/lib_indecitnet.htmlPrecedents Relating to L-1 Visa Petitions (June 29, 2011) Page 1
  • 2.  employment, continuous (1-year): o intervening stay in U.S. as H-3 trainee; effect; 14-140 o must have been in executive, managerial or specialized knowledge capacity; 13- 654  executive; 13-601  existing office of employer, beneficiary coming to; not required by statute; 13-816  “specialized knowledge”, alien of; 13-618  “specialized knowledge” qualifies alien for (L) classification as manager; 13-654Interim Matter of Cite as: Holding:Dec. #2053 Bocris 13 I&N Dec. 601 An alien beneficiary who, immediately (Reg. Comm’r 1970) preceding the filing of the visa petition, who has been employed for more than one year abroad as an executive of the petitioner’s French affiliate, and whose transfer to the United States is being sought for employment as an executive on a temporary basis, is eligible for classification as a nonimmigrant intra- company transferee under section 101 (a) (15) (L) of the Immigration and Nationality Act, as amended, notwithstanding he is the beneficiary of an approved sixth preference visa petition. Notable dicta: “The legislative history of such amendment discloses that the above provision was intended to help eliminate problems faced by American companies having offices abroad in transferring key personnel freely within the organization; that, previously, international executives coming for temporary assignments have been forced to apply for immigrant visas and qualify as permanent resident aliens; that the class of persons eligible for suchPrecedents Relating to L-1 Visa Petitions (June 29, 2011) Page 2
  • 3. Interim Matter of Cite as: Holding:Dec. # nonimmigrant visas has been narrowly drawn and it is anticipated that their number will not be very large; that the stay under an “L” visa should not exceed three years, although bona fide requests for extension beyond such time as well as applications for adjustment for permanent residence would be considered. (House Report (Committee on the Judiciary), No. 91-351, (To accompany S. 2593)).” At p. 602-603 In the very first administrative appellate decision (June 26, 1970) after the creation of the “L” visa by an amendment to the INA via Pub. L. 91-225 (84 Stat. 116) on April 7, 1970; it was already acknowledged that a “dual intent” could surface or, if things worked out well, something that started out as “temporary” could evolve into something “permanent”. This was not fatal to the non-immigrant petition.2959 Raulin 13 I&N Dec. 618 Beneficiary, who, during her employment (Reg. Comm’r 1970) for the past 2 years as Executive Secretary to the Vice President of a Paris subsidiary of the petitioner, maintained liaison with high government officials and presidents of companies doing business with the petitioning company, possesses "specialized knowledge" which qualifies her for classification as a nonimmigrant intracompany transferee under section 101(a)(15)(L) of the Immigration and Nationality Act, as amended.2068 Schick 13 I&N Dec. 647 Since the petitioning American company- (Reg. Comm’t 1970) which has signed a contract with a French company giving the American firm exclusive license to buy and import into the United States machineryPrecedents Relating to L-1 Visa Petitions (June 29, 2011) Page 3
  • 4. Interim Matter of Cite as: Holding:Dec. # manufactured by the French company for 10 years-is not bound to such foreign firm through common ownership and management but has only a contractual relationship with the foreign company, subject to termination, petitioner is not connected with the French company within the contemplation of section 101(a)(15)(L) of the Immigrat ion and Nationality Act, as amended, and the beneficiary, an employee of the French firm, is ineligible for classification as an intra-company transferee under section 101(a)(15)(L) of the Act since he would not be entering the United States to continue to perform services for the same employer or a subsidiary or affiliate thereof.2070 Vaillancourt 13 I&N Dec. 654 To qualify for classification as a (Reg. Comm’r 1970) nonimmigrant intra-company transferee under section 101(a)(15)(L) of the Immigration and Nationality Act, as amended, the beneficiary must have been employed abroad continuously for at least one year immediately before coming to the United States in a capacity that was executive, managerial or involved specialized knowledge, and must be coming to continue serving the same employer (or a subsidiary or affiliate) in one of those capacities.2110 LeBlanc 13 I&N Dec. 816 The statue does not require that the (Reg. Comm’r 1971) beneficiary of a visa petition to accord nonimmigrant classification as an intra- company transferee under section 101 (a) (15) (L) of the Immigration and Nationality Act, as amended, be coming to an existing office, branch, or other establishment of his employer in order that the petition may be approved. While there may be a question as to whether or not the petitioning company actually hasPrecedents Relating to L-1 Visa Petitions (June 29, 2011) Page 4
  • 5. Interim Matter of Cite as: Holding:Dec. # an existing or established affiliate in the United States at this time, where, as the record in the instant case shows, the petitioner has acquired physical premises necessary to its functions here which evidences the bona fides of its operations in this country, the petition may be approved if otherwise approvable.2148 Continental 14 I&N Dec. 140 An intervening temporary stay in the Grain Co. (District Dir. OMA United States as a nonimmigrant trainee 1974) in pursuit of further training related to his qualifying employment under the auspices of the petitioner is not regarded as interruptive of the concept that the beneficiary “has been employed” abroad “immediately preceding the time of his application for admission to the United States” within the meaning of section 101(a)(15(L) of the Immigration and Nationality Act, as amended. Hence, where immediately following such training in the United States the beneficiary has been employed by the foreign subsidiary in a qualifying capacity for more than the past 7 months, and immediately preceding such training he was employed for over 5 months, he has met the one year continuous employment requirement of section 101(a)(15)(L) of the Act.2260 Pozzoli 14 I&N Dec. 569 The fact that beneficiarys salary while in (Reg. Comm’r 1974) the United States will be paid by the foreign affiliate of the petitioning company which is seeking his services does not preclude him from establishing eligibility for classification as an intra- company transferee under section 101(a)(15)(L) of the Immigration and Nationality Act, as amended.2303 Del Mar Ben, 15 I&N Dec. 5 Mere ownership by the petitioning Inc. (Reg. Comm’r 1974) American corporation of stock in aPrecedents Relating to L-1 Visa Petitions (June 29, 2011) Page 5
  • 6. Interim Matter of Cite as: Holding:Dec. # Japanese corporation and an informal cooperative arrangement between the presidents of the two corporations to exchange favors, does not render petitioning corporation an affiliate of the Japanese corporation within the contemplation of section 101(a)(15)(L) of the Immigration and Nationality Act, as amended, for the purpose of according beneficiary, an employee of the Japanese firm, classification as an intra-company transferee.2602 Chartier 16 I&N Dec. 284 (1) Respondent, a native and citizen of (BIA 1977) Canada was employed in Canada by the subsidiary of a United States corporation located in Michigan. Respondent worked directly for that company, which had no subsidiary or branch office in Canada. Respondent was admitted to the United States in 1974 as an intra-company transferee under section 101(a)(15)(L) of the Immigration and Nationality Act. In 1976 respondent filed an application for labor certification and the Service instituted an investigation which culminated in deportation proceedings under section 241(a)(1) of the Act predicated on the ground that the respondent was not entitled for L-1 classification. (2) Section 101(a)(15(L) of the Act does not expressly require the employer to have a subsidiary or other legal entity abroad. In the context of a deportation proceeding, such a requirement should not be implied. (3) An alien may be admitted into the United States as an intra-company transferee under section 101(a)(15)(L) of the Act even though the petitioning employer has no subsidiary or other legalPrecedents Relating to L-1 Visa Petitions (June 29, 2011) Page 6
  • 7. Interim Matter of Cite as: Holding:Dec. # entity abroad.2758 Michelin Tire 17 I&N Dec. 248 (1) In order to be eligible for Corp. (Reg. Comm’r 1978) nonimmigrant classification under section 101(a)(15)(L) of the Immigration and Nationality Act, 8 U.S.C. 1101(a)(15)(L), the beneficiary must have been employed continuously for 1 year by the petitioner at the time the petition is filed with the Service. Having worked for the company for only 9 months, beneficiary failed to meet this time requirement. (2) Where a beneficiary seeks to qualify for "L" classification on the basis of specialized knowledge, that knowledge must be relevant to the business itself and directly concerned with the expansion of commerce or it must allow an American business to become competitive in overseas markets. In this case beneficiarys specialized knowledge was of the French Educational System. The petition sought to allow her to enter this country to teach the children of the French employees who would be coming here to start the plant, so their childrens educational development would not suffer. This was not the specialized knowledge contemplated by the statute but was related to the provision of a fringe benefit for the companys employees. For that reason it does not qualify the beneficiary for admission under section 101(a)(15)(L) of the Act.2826 Aphrodite 17 I&N Dec. 530 A corporation is a separate entity from its Investments (Comm’r 1980) stockholders for the purposes of Limited qualifying an alien beneficiary as an intra-company transferee under section 101(a)(15)(L) of the Immigration and Nationality Act, 8 U.S.C. 1101(a)(15)(L). Cf. Matter of M--, 8 I&N Dec. 24 (BIAPrecedents Relating to L-1 Visa Petitions (June 29, 2011) Page 7
  • 8. Interim Matter of Cite as: Holding:Dec. # 1958; A.G.1958).2849 Tessel, Inc. 17 I&N Dec. 631 (1) The words "same international (Assoc. Comm’r, corporations and organizations" include Exams [AAO] 1981) "an affiliate or subsidiary thereof" within the meaning of 20 C.F.R. 656.10 for Schedule A, Group IV, labor certification. Companies are "affiliated" within the meaning of section 101 (a) (15) (L) of the Act where there is a high degree of common ownership and management between the two companies, either directly or through a third entity. (2) An unsalaried appointed chairman of a corporation is an employee in a managerial or executive position for Schedule A, Group IV, labor certification purposes. (3) The fact that a petitioner for admission to the United States qualifies for a non-preference status, does not preclude the petitioners qualification for a preference status. (4) The corporation is a separate legal entity from its stockholders, able to employ them and to file a petition on their behalf.2856 Barsai 18 I&N Dec. 13 (1) A business firm which is a branch of (Reg. Comm’r 1981) a foreign government qualifies as an "affiliate" within the meaning of section 101(a)(15)(L) of the Immigration and Nationality Act, 8 U.S.C. 1101(a)(15)(L), so long as the requisite business affiliation exists between the foreign firm and the petitioning United States firm. (2) An employee of a foreign firm, even a firm which is a branch of a foreign government, can qualify as an "intra- company transferee" within the meaningPrecedents Relating to L-1 Visa Petitions (June 29, 2011) Page 8
  • 9. Interim Matter of Cite as: Holding:Dec. # of section 101(a)(15)(L) of the Act.2865 Penner 18 I&N Dec. 49 (1) Occupations do not inherently qualify (Comm’r 1982) a beneficiary for classification under section 101(a)(15)(L) of the Immigration and Nationality Act, 8 U.S.C. 1101(a)(15)(L). The Service looks for elements beyond general job tasks and duties; in other words, the specialized knowledge related to the proprietary interests of the business, its management, and concerned skills or knowledge not readily available in the job market. (2) A beneficiary who possessed knowledge of the parts operation that was shared by no other employee of the company and who was essential to the operation of the parts distribution qualified as an "L" manager even though he had not served in an executive or managerial capacity previously. Matter of Vaillancourt, 13 I & N. Dec. 654 (R.C.1970), interpreted. (3) A beneficiary who was an executive secretary in a multinational company and whose activities as a liaison with high government officials and business executives, as an intermediary with customers and government officials and as an advisor to a new vice president of the company was found to be a person of specialized knowledge. Matter of Raulin, 13 I & N. Dec. 618 (R.C.1970), interpreted. (4) A beneficiary who was a sales manager was found to be a person of specialized knowledge in screening, recruiting, contracting for, and training sales personnel in the sale of cosmetics. Matter of LeBlanc, 13 I & N. Dec. 816 (R.C.1971), interpreted.Precedents Relating to L-1 Visa Petitions (June 29, 2011) Page 9
  • 10. Interim Matter of Cite as: Holding:Dec. # (5) The "L" provision of section 101(a)(15) of the Immigration and Nationality Act, 18 U.S.C. 1101(a)(15), was not intended to alleviate or remedy a shortage of United States workers. The temporary worker provisions contained in section 101(a)(15)(H) of the Immigration and Nationality Act, 8 U.S.C. 1101(a)(15)(H) , provide a basis for admission of workers for whom there is a shortage.2881 Colley, et al. 18 I&N Dec. 169 ( 1) Beneficiaries, employed as aerial (Comm’r 1981) survey pilot, survey pilot/ navigator, aerial photographer, and aerial camera operator, possessed the requisite "specialized knowledge" within the meaning of section 101(a)(15)(L) of the Immigration and Nationality Act, 8 U.S.C. 1101(a)(15)(L) , to be classified as intracompany transferees because their skills were necessary to operate the unique and unusually sophisticated aerial photography and computerized navigational system developed by the Canadian parent company. The petitioner has also demonstrated that all four beneficiaries have been employed by the parent company in excess of one year and that their services are essential for the successful operation of this particular equipment. (2) In Matter of Raulin, 13 I & N Dec. 618, and Matter of LeBlanc, 13 I&N Dec. 816, the occupations did not inherently qualify the beneficiaries and the Service looked for elements beyond general job tasks and duties for the specialized knowledge related to the proprietary interests of the business, its management, and concerned skills or knowledgePrecedents Relating to L-1 Visa Petitions (June 29, 2011) Page 10
  • 11. Interim Matter of Cite as: Holding:Dec. # related to the proprietary interests of the business, its management, and concerned skills or knowledge not readily available in the job market. (3) Specialized knowledge must be relevant to the business itself and directly concerned with the expansion of commerce or it must allow a business to become competitive in overseas markets. Matter of Michelin Tire Corporation, 17 I & N Dec. 248 (R.C.1978). (4) Most employees today are specialists and have been trained and given specialized knowledge; however, it cannot be concluded that all employees with specialized knowledge or performing highly technical duties are eligible for classification as intracompany transferees.2917 Hughes 18 I&N Dec. 289 (1) For the purpose of section (Comm’r 1982) 101(a)(15)(L) of the Act, 8 U.S.C. 1101(a)(15) L), affiliation exists between two companies when the petitioning company: Has a 50% financial interest in the foreign company; has de facto control over the foreign company; and, the foreign company exists solely to sell the petitioners product. (2) The terms "affiliate" or "affiliation" may be broadly used to describe business entities which have relationships with one another based upon both ownership and control. Ownership need not be majority if control exists. (3) The term "affiliate" is sometimes more specifically used to describe the relationship between two companies which have no direct linkage but are directed, controlled, and at least partiallyPrecedents Relating to L-1 Visa Petitions (June 29, 2011) Page 11
  • 12. Interim Matter of Cite as: Holding:Dec. # owned by the same parent corporation. (4) The term "subsidiary" is a more specific form of affiliation in which the company so described is subordinate to the control of another.2918 Kloeti 18 I&N Dec. 295 (1) The beneficiary of a petition under (Reg. Comm’r 1982) 101(a)(15)(L) of the Act 8 U.S.C. 1101(a)(15)(L), does not satisfy the qualifying experience requirement when the beneficiarys only previous employment for the petitioning firm was as a B-1 nonimmigrant in the United States. (2) Matter of Continental Grain , 14 I & N. Dec. 140 (D.D.1972), holds that a beneficiarys one year qualifying experience with the petitioner must be wholly outside the United States, except for brief trips to the United States to attend conferences, training sessions, or similar functions. (3) 8 C.F.R. 214.2(1)(2) requires a petitioner to submit "a statement describing the capacity in which the beneficiary has been employed abroad" to support the petition for L-1 status.2933 Isovic 18 I&N Dec. 361 (1) A petitioner seeking to classify an (Comm’r 1982) alien under 101(a)(15)(L) of the Immigration and Nationality Act, 8 U.S.C. 1101(a)(15(L), must demonstrate the intention to employ the beneficiary in the United States for only a temporary period. (2) While a petitioner for an L classification generally need submit only a simple statement of the facts and a listing of dates to demonstrate the intent to employ the beneficiary in the UnitedPrecedents Relating to L-1 Visa Petitions (June 29, 2011) Page 12
  • 13. Interim Matter of Cite as: Holding:Dec. # States temporarily, where the beneficiary is the owner/major stockholder of the petitioning company, a greater degree of proof is required. * The extra evidentiary requirements espoused in Isovic back in 1982, were codified in 8 CFR § 214.2 (l)(3)(vii) but have been superseded by a statutory change in 1990. Superseded by the statutory introduction of “Dual Intent” in Pub. L. 101-649 (IMMACT 90).3008 Siemens 19 I&N Dec. 362 (1) Where each of two corporations Medical (Comm’r 1986) (parents) owns and controls 50 percent of Systems, Inc. a third corporation (joint venture), the joint venture is a subsidiary of each of the parents for purposes of section 101(a)(15)(L) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(15)(L) (1982). Matter of Hughes, 18 I&N Dec. 289 (Comm. 1982) clarified. (2) Each parent, through ownership and control of 50 percent of the voting shares of the joint venture, has the power to prevent action by that company through exercise of its veto power; hence, each parent "negatively" controls that company. (3) All agreements between the parents relating to voting of the shares, distribution of profits, management and direction of the subsidiary, and similar factors which affect actual control over 50 percent of the subsidiary must be identified. Unless such agreements restrict the actual control of one parent, the 50-percent ownership will be deemed per se control.Precedents Relating to L-1 Visa Petitions (June 29, 2011) Page 13
  • 14. Interim Matter of Cite as: Holding:Dec. #3052 Church 19 I&N Dec.593 (1) A person seeking a Schedule A, Scientology (Comm’r 1988) Group IV, labor certification must meet International all eligibility requirements for "L-1" classification as a manager or executive, including those relating to a qualifying relationship between the entities for which the person has been and would be employed. (2) In view of congressional intent that the "L-1" provisions be used for personnel transferred by international businesses, any religious personnel who are able to meet all the same "L-1" requirements which apply to business or other personnel may be granted "L-1" visas or Schedule A, Group IV, labor certifications. (3) Ownership and control are the factors for establishing a qualifying relationship between entities for purposes of "L-1" classification. (4) Ownership refers to the direct or indirect legal right of possession of the assets of an entity with full power and authority to control. (5) Control means the direct or indirect legal right and authority to direct the establishment, management, and operations of an entity.3067 Sandoz Crop 19 I&N Dec. 666 (1) Specialized knowledge involves Protection (Comm’r 1988) proprietary knowledge and an advanced Corp. level of expertise not readily available in the United States job market. This knowledge and expertise must be clearly different from those held by others employed in the same or similar occupations. Different procedures are not a proprietary right within this context unless the entire system and philosophyPrecedents Relating to L-1 Visa Petitions (June 29, 2011) Page 14
  • 15. Interim Matter of Cite as: Holding:Dec. # behind the procedures are clearly different from those of other firms, they are relatively complex, and they are protected from disclosure to competition. (2) A petitioners ownership of patented products or copyrighted works, in and of itself, does not establish that a particular employee has specialized knowledge. In order to qualify, the beneficiary must himself or herself be a key person with knowledge which is critical for performance of the job duties and which is protected from disclosure through patent, copyright, or company policy.3108 Safetran 20 I&N Dec. 49 (1) Although not specifically addressed (Comm’r 1989) in the regulations, the 5- or 6-year limit of stay imposed on "H-1" and "L-1" nonimmigrant aliens is cumulative; it includes both the time spent in the United States as an "H-1" and as an "L-1" in the same 5- or 6-year period of time. (2) In order to establish the existence of extraordinary circumstances warranting an extension of temporary stay for a sixth and final year, the petitioner bears the burden of submitting evidence clearly detailing the extreme hardship it will encounter as a result of the termination of the beneficiarys services.No Precedent Decision relating to the L visas have been published since 1989.Precedents Relating to L-1 Visa Petitions (June 29, 2011) Page 15
  • 16. No Precedent Decision relating to the L visas have been published since 1989.Non-precedent AAO Decisions concerning the L visas have, of course continued. Some of thosenon-precedent decisions are available as “Administrative Decisions” posted on the USCISCwebsite. The AAO category for its postings is D7 - Intracompany Transferees (L-1A and L-1B) and the decisions dating from 2005 through the most recent dated August 23, 2010.See companion article to this document at: http://www.slideshare.net/BigJoe5/a-review-l-non-immigrant-of-intracompnay-transferees-6292011-jw for a brief discussion of statutes andregulations.Within those non-precedents there is a plethora of citations to various Court Decisions involvingchallenges to AAO Dismissals upholding denials and revocations by the Service CenterDirectors of L-1 petitions. A few of those citations are listed below.The Fifth Circuit Court of Appeals has previously affirmed the USCIS decision to deny L-IBpetitions filed on behalf of churrasqueiros based on the petitioners failure to submit evidenceregarding individual beneficiaries skills and abilities, and inability to establish that Braziliancooking is sufficiently specialized to merit L-1B status. Boi Na Braza Atlanta, LLC v. Upchurch,Not Reported in F.Supp.2d, 2005 WL 2372846 (N.D.Tex., 2005), afd 194 Fed.Appx. 248 (5thCir. 2006).Added background:A churrasqueira is a bed of charcoal that skewers of meat are placed in, above and/or around orfor an east translation; it is a Brazilian barbeque “grill” or churrasqueiro is a Brazilian barbeque“chef”. Waiters carry large skewers (much like swords) with a hunk of meat on it and slice it toorder on to the diners’ plates.The appropriate standard for determining specialized knowledge is the statutory definition of theterm at section 214(c)(2)(B) of the Act, along with USCIS regulations and applicable precedentdecisions. When a statute is ambiguous, Congress has left a gap for the agency to fill. SeeChevron USA Inc. v. Natural Resource Defense Council, 467 U.S. 837, 843-44 (1984). Ininterpreting section 214(c)(2)(B), the AAO relies on existing USCIS regulations, the applicableprecedent decisions, and the legislative history of the enabling and declaratory statutes, as anindication of Congressional intent. Additionally, the AAO follows internal agency memoranda.Such memoranda may aid in the interpretation of the specialized knowledge standard, but thememoranda are intended as internal guidelines for USCIS personnel and do not establishjudicially enforceable rights. Christensen v. Harris County, 529 U.S. 576, 587 (2000); see alsoLoa-Hewera v. Trominski, 231 F.3d 984,989 (5th Cir. 2000) (quoting Fano v. O’Neill, 806 F.2d1262, 1264 (5th Cir.1987)).USCIS memoranda articulate internal guidelines for agency personnel; they do not establishjudicially enforceable standards. Agency interpretations that are not arrived at through precedentdecision or notice-and-comment rulemaking - such as those in opinion letters, policy statements,agency manuals, and enforcement guidelines - lack the force of law and do not warrant Chevron-Precedents Relating to L-1 Visa Petitions (June 29, 2011) Page 16
  • 17. style deference. Christensen v. Harris County, 529 U.S. 576, 587 (2000). An agencys internalguidelines "neither confer upon [plaintiffs] substantive rights nor provide procedures upon which[they] may rely." Lou-Herrera v. Trominski, 23 1 F.3d 984, 989 (5th Cir. 2000) (quoting Fano v.ONeill, 806 F.2d 1262, 1264 (5th Cir. 1987)). Agency policy memorandum and unpublisheddecisions do not confer substantive legal benefits upon aliens or bind USCIS.Congress did not define "specialized knowledge" in the Immigration Act of 1970, nor was it a termof art drawn from case law or from another statute. 1756, Inc. v. Attorney General, 745 F.Supp. 9, 14(D.D.C., 1990).While Congress did not provide explicit guidance for what should be considered ordinaryknowledge, the canons of statutory interpretation provide some clue as to the intended scope ofthe L-1B specialized knowledge category. NLRB v. United Food & Commercial Workers Union,Local 23, 484 U.S. 1 12, 123 (1 987) (citing INS v. Cardoza-Fonseca, 480 U.S. 421,107 S. Ct1207, 94 L.Ed2d 434 (1987)).On supporting a “narrow reading” of the L-1 visa category: American Auto. Assn v. AttorneyGeneral, Not Reported in F.Supp., 1991 WL 222420 (D.D.C. 1991); Fibermaster, Ltd. v. INS.,Not Reported in F.Supp., 1990 WL 99327 (D.D.C., 1990); Delta Airlines, Inc. v. Dept. ofJustice, Civ. Action 00-2977-LFO (D.D.C. April 6, 2001) (on file with AAO).From: Aug232010_01D7101.pdf >>> In Boi Na Braza, “...[t]he court rejected the plaintiffs’argument that the decisions to deny the 20 petitions were improper simply because the sameUSCIS service center had previously and recently granted extensions to certain otherbeneficiaries performing in the same employment capacity.” At p. 4In response to that argument, I say:  “Fool me once, shame on you. Fool me twice, shame on me.” OR  “If there are that many folks qualified for this, then it is not very “specialized” anymore (or after all, whichever the case may be).The definitions of executive and managerial capacity each have two parts. First, the petitionermust show that the beneficiary performs the high-level responsibilities that are specified in thedefinitions. Second, the petitioner must show that the beneficiary primarily performs thesespecified responsibilities and does not spend a majority of his or her time on day-to-dayfunctions. Champion World, Inc. v. INS, 940 F.2d 1533 (Table), 1991 WL 144470 (9th Cir. July30, 1991).Reciting the beneficiarys vague job responsibilities or broadly-cast business objectives is notsufficient; the regulations require a detailed description of the beneficiarys daily job duties. Thepetitioner failed to provide any detail or explanation of the beneficiarys activities in the courseof his daily routine. The actual duties themselves will reveal the true nature of the employment.Fedin Bros. Co., Ltd. v. Suva, 724 F. Supp. 1103, 1108 (E.D.N.Y. 1989), aff’d, 905F.2d 41 (2d. Cir. 1990).Precedents Relating to L-1 Visa Petitions (June 29, 2011) Page 17
  • 18. While performing non-qualifying tasks necessary to produce a product or service will notautomatically disqualify the beneficiary as long as those tasks are not the majority of thebeneficiarys duties, the petitioner still has the burden of establishing that the beneficiary is"primarily" performing managerial or executive duties. Section 101(a)(44) of the Act; see alsoBrazil Quality Stones, Inc. v. Chertoff, 53 1, F.3d 1063,1069-70 (9th Cir. 2008).The petitioner lists the beneficiarys duties as including both general managerial and operationaltasks, but fails to quantify the time the beneficiary spends on them. This failure of documentationis important because several of the beneficiarys tasks, such as performing market research orcommunicating with the petitioners client regarding manufacturing orders, do not fall directlyunder traditional managerial duties as defined in the statute. For this reason, the AAO cannotdetermine whether the beneficiary is primarily performing the duties of a manager. See IKEAUS, Inc. v. US. Dept. of Justice, 48 F. Supp. 2d 22, 24 (D.D.C. 1999).In reviewing the relevance of the number of employees a petitioner has, federal courts havegenerally agreed that USCIS "may properly consider an organizations small size as one factor inassessing whether its operations are substantial enough to support a manager." Family Inc. v. US.Citizenship and Immigration Services 469 F. 3d 13 13, 13 16 (9 Cir. 2006) (citing with approvalRepublic of Transkei v. INS, 923 F 2d. 175, 178 (D.C. Cir. 1991); Fedin Bros. Co. v. Sava, 905F.2d 41, 42 (2d Cir. 1990) (per curiam); Q Data Consulting, Inc. v. INS, 293 F. Supp. 2d 25,29(D.D.C. 2003)). Other relevant factors may include the absence of employees who wouldperform the non-managerial or non-executive operations of the company, or a "shell company"that does not conduct business in a regular and continuous manner. See, e.g. Systronics Corp. v.INS, 153 F. Supp. 2d 7, 15 (D.D.C. 200 1).The AAO acknowledges that USCIS has approved two prior petitions granting the beneficiary L-1A status. The prior approvals do not preclude USCIS from denying an extension of the originalvisa based on a reassessment of the beneficiarys qualifications. Texas A&M Univ. v. Upchurch,99 Fed. Appx. 556,2004 WL 1240482 (5th Cir. 2004)....[t]he mere fact that USCIS, by mistake or oversight, approved a visa petition on one occasiondoes not create an automatic entitlement to the approval of a subsequent petition for renewal ofthat visa. Royal Siam Corp. v. Chertoff, 484 F.3d 139, 148 (1st Cir 2007); see also Matter ofChurch Scientology Intl., 19 I&N Dec. 593, 597 (Comm. 1988). Each nonimmigrant petitionfiling is a separate proceeding with a separate record and a separate burden of proof. See 8C.F.R. § 103.8(d).It would be absurd to suggest that CIS or any agency must treat acknowledged errors as bindingprecedent. Sussex Engg. Ltd. v. Montgomery, 825 F.2d 1084, 1090 (6th Cir. 1987), cert. denied,485 U.S. 1008 (1988). Read more of the USCIS Administrative Decisions on the USCIS website.Precedents Relating to L-1 Visa Petitions (June 29, 2011) Page 18