A Review of Intracompnay Transferees as “L” Non-Immigrants                                            By Joseph P. Whalen ...
SUBCHAPTER II--IMMIGRATION   Part II--Admission Qualifications for Aliens; Travel Control of Citizens and Aliens     Sec. ...
(C) The Attorney General shall provide a process for reviewing and acting upon petitions        under this subsection with...
spouse, but to date USCIS has only changed the processing instructions and the controlling  computer system (CLAIMS). As p...
2000--Subsec. (b). Pub. L. 106-553, Sec. 1(a)(2) [title XI, Sec. 1102(d)(1)], substituted       ``(H)(i), (L), or (V) for ...
[probably means section 415 of div. J. of Pub. L. 108-447], the L Visa Interagency Task     Force shall report to the Comm...
(B) Managerial capacity means an assignment within an organization in which          the employee primarily:              ...
(F) New office means an organization which has been doing business in the          United States through a parent, branch,...
( 3 ) In the case of a partnership that is organized in the United States to                     provide accounting servic...
VII.    A sampling of Precedents Decisions Concerning “L” Non-Immigrants        A. Matter of LeBlanc, 13 I&N Dec. 816 (Reg...
2.) The basis for denial was improper because it was not based on an issue                raised in the RFE; and          ...
G. Matter of Church Scientology International, 19 I&N Dec. 593, 597 (Comm. 1988) is              cited for the following w...
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A review L non immigrant of intracompnay transferees 6-29-2011 jw

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A survey of law: statute, regulations, and just s few Precedents. Updated after the first 31 views. A small but needed correction.

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A review L non immigrant of intracompnay transferees 6-29-2011 jw

  1. 1. A Review of Intracompnay Transferees as “L” Non-Immigrants By Joseph P. Whalen I. Introduction:There is nothing particularly new about the law controlling the adjudication of an L petition (oran H petition) since the issuance of the USCIS Policy Memorandum entitled: DeterminingEmployer-Employee Relationship for Adjudication of H-1B Petitions, Including Third-Party SitePlacements‖ on January 8, 20101. The interpretations spelled-out in that memo were upheld in acourt challenge that failed. Some weak or failed H-1B classification beneficiaries have been beenpetitioned as L-1A or L-1B non-immigrants instead. That possibility is also not new. What somepractitioners have described as a new USCIS ―attack‖ on L petitions is a manufactured paranoidfantasy that they are trying to pass off to gullible clients in order to shift the blame to the ―bigbad government‖. Weak L petitions fail on the merits as to: the beneficiary’s qualifications(education and/or work experience), the job description (position title and even moreimportantly, the actual duties to be performed), the tenuous (or bogus) pre-existing relationshipbetween the petitioner and beneficiary, poor documentary evidence (or lack thereof), or anycombination of these factors. II. Controlling Statutes: UNITED STATES CODE [USC] TITLE 8--ALIENS AND NATIONALITY CHAPTER 12--IMMIGRATION AND NATIONALITY SUBCHAPTER I--GENERAL PROVISIONS Sec. 1101. Definitions [Title I of INA, § 101] (a) As used in this chapter-- ***** (15) The term ``immigrant means every alien except an alien who is within one of the following classes of nonimmigrant aliens-- ***** (L) subject to section 1184(c)(2) of this title [INA § 214(c)(2)], an alien who, within 3 years preceding the time of his application for admission into the United States, has been employed continuously for one year by a firm or corporation or other legal entity or an affiliate or subsidiary thereof and who seeks to enter the United States temporarily in order to continue to render his services to the same employer or a subsidiary or affiliate thereof in a capacity that is managerial, executive, or involves specialized knowledge, and the alien spouse and minor children of any such alien if accompanying him or following to join him;1 http://www.uscis.gov/USCIS/Laws/Memoranda/2010/H1B%20Employer-Employee%20Memo010810.pdfOn “L” Non-Immigrant Intracompany Transferees (June 29, 2011) Page 1
  2. 2. SUBCHAPTER II--IMMIGRATION Part II--Admission Qualifications for Aliens; Travel Control of Citizens and Aliens Sec. 1184. Admission of nonimmigrants [Title II of the INA, § 214] (b) Presumption of status; written waiver Every alien (other than a nonimmigrant described in subparagraph (L) or (V) of section 1101(a)(15) of this title, and other than a nonimmigrant described in any provision of section 1101(a)(15)(H)(i) of this title except subclause (b1) of such section) shall be presumed to be an immigrant until he establishes to the satisfaction of the consular officer, at the time of application for a visa, and the immigration officers, at the time of application for admission, that he is entitled to a nonimmigrant status under section 1101(a)(15) of this title .... [Emphasis added.] ***** (c) Petition of importing employer [NOTE: Substitute Secretary of Homeland Security for Attorney General—USCIS is delegated as the DHS Agency.] (1) The question of importing any alien as a nonimmigrant under subparagraph (H), (L), (O), or (P)(i) of section 1101(a)(15) of this title (excluding nonimmigrants under section 1101(a)(15)(H)(i)(b1) of this title) in any specific case or specific cases shall be determined by the Attorney General, after consultation with appropriate agencies of the Government, upon petition of the importing employer. Such petition, shall be made and approved before the visa is granted. The petition shall be in such form and contain such information as the Attorney General shall prescribe. .... ***** (2)(A) The Attorney General shall provide for a procedure under which an importing employer which meets requirements established by the Attorney General may file a blanket petition to import aliens as nonimmigrants described in section 1101(a)(15)(L) of this title instead of filing individual petition under paragraph (1) to import such aliens. Such procedure shall permit the expedited processing of visas for admission of aliens covered under such a petition. (B) For purposes of section 1101(a)(15)(L) of this title, an alien is considered to be serving in a capacity involving specialized knowledge with respect to a company if the alien has a special knowledge of the company product and its application in international markets or has an advanced level of knowledge of processes and procedures of the company.On “L” Non-Immigrant Intracompany Transferees (June 29, 2011) Page 2
  3. 3. (C) The Attorney General shall provide a process for reviewing and acting upon petitions under this subsection with respect to nonimmigrants described in section 1101(a)(15)(L) of this title within 30 days after the date a completed petition has been filed. (D) The period of authorized admission for-- (i) a nonimmigrant admitted to render services in a managerial or executive capacity under section 1101(a)(15)(L) of this title shall not exceed 7 years, or (ii) a nonimmigrant admitted to render services in a capacity that involves specialized knowledge under section 1101(a)(15)(L) of this title shall not exceed 5 years. (E) In the case of an alien spouse admitted under section 1101(a)(15)(L) of this title, who is accompanying or following to join a principal alien admitted under such section, the Attorney General shall authorize the alien spouse to engage in employment in the United States and provide the spouse with an ``employment authorized endorsement or other appropriate work permit. (F) An alien who will serve in a capacity involving specialized knowledge with respect to an employer for purposes of section 1101(a)(15)(L) of this title and will be stationed primarily at the worksite of an employer other than the petitioning employer or its affiliate, subsidiary, or parent shall not be eligible for classification under section 1101(a)(15)(L) of this title if-- (i) the alien will be controlled and supervised principally by such unaffiliated employer; or (ii) the placement of the alien at the worksite of the unaffiliated employer is essentially an arrangement to provide labor for hire for the unaffiliated employer, rather than a placement in connection with the provision of a product or service for which specialized knowledge specific to the petitioning employer is necessary. III. INS Reaction and USCIS Inaction to Statutory Changes INA Section 214(c)(2)(A) was amended by section 2(a) of Public Law 107-125, dated January 16, 2002. Section 214(c)(2)(E) was added by section 1 of Public Law 107-125. Paragraph (e)(6) added by Public Law 107-124, dated January 16, 2002. These changes gave ―employment authorization‖ to spouses (but not children) of L and E Non-Immigrants. In the wake of enactment of Public Laws 107-124 and -125, INS published a Policy Memorandum on February 22, 20022, and in that memo, INS indicated that a regulatory change would be made to create the new EAD categories A-17 for E spouses and A-18 for L2 ―Guidance on Employment Authorization for E and L Nonimmigrant Spouses, and for Determinations on theRequisite Employment Abroad for L Blanket Petitions‖Policy Memorandum found at: http://www.uscis.gov/files/pressrelease/E_LEmpAuthPub.pdfOn “L” Non-Immigrant Intracompany Transferees (June 29, 2011) Page 3
  4. 4. spouse, but to date USCIS has only changed the processing instructions and the controlling computer system (CLAIMS). As part of its processing updates, the I-765 Form Instructions do include the commensurate changes for E-1, regular E-2, CNMI E-2, and L-2 spouses. E-3 spouses are not included, yet. That February 2002 INS Policy Memorandum provides the following information: ―The regulations at 8 CFR 274a.12(a) are being amended to add the dependent spouse of a principal E and L nonimmigrant to the list of categories of aliens who are authorized to be employed in the United States without restriction.‖ ***** ―HQISD has modified the tables in CLAIMS to allow generation of a receipt on Form I- 797 and a corresponding Form I-766 that reflect this new basis of employment authorization. The basis of work authorization for the spouse of an E nonimmigrant will be noted as "A-17" under "Category" on Form I-766, and (a)(17) on Form I-797. The basis of work authorization for the spouse of an L nonimmigrant will be noted as "A-18" under "Category" on Form I-766, and (a)(18) on Form I-797.‖ The regulatory changes predicted in 2002, have not yet been made as of June 29, 2011, and counting. These will likely be swept up in the changes that must be made as ordered by President Obama and being addressed by the Regulatory Review now underway. (Search and see docket number DHS-2011-0015 at www.regulations,gov) IV. Various Amendments to INA § 214, especially subsection (b) 2003--Subsec. (b). Pub. L. 108-77, Secs. 107(c), 404(1), temporarily substituted ``(other than a nonimmigrant described in subparagraph (L) or (V) of section 1101(a)(15) of this title, and other than a nonimmigrant described in any provision of section 1101(a)(15)(H)(i) of this title except subclause (b1) of such section) for ``(other than a nonimmigrant described in subparagraph (H)(i), (L), or (V) of section 1101(a)(15) of this title). See Effective and Termination Dates of 2003 Amendments note below. Effective and Termination Dates of 2003 Amendments Amendment by Pub. L. 108-78 effective on the date the United States-Singapore Free Trade Agreement enters into force (Jan. 1, 2004), and ceases to be effective on the date the Agreement ceases to be in force, see section 107 of Pub. L. 108-78, set out in a note under section 3805 of Title 19, Customs Duties. Amendment by Pub. L. 108-77 effective on the date the United States-Chile Free Trade Agreement enters into force (Jan. 1, 2004), and ceases to be effective on the date the Agreement ceases to be in force, see section 107 of Pub. L. 108-77, set out as a note under section 3805 of Title 19, Customs Duties.On “L” Non-Immigrant Intracompany Transferees (June 29, 2011) Page 4
  5. 5. 2000--Subsec. (b). Pub. L. 106-553, Sec. 1(a)(2) [title XI, Sec. 1102(d)(1)], substituted ``(H)(i), (L), or (V) for ``(H)(i) or (L). 1990--Subsec. (a). Pub. L. 101-649, Sec. 207(b)(1), designated existing provisions as par. (1) and added par. (2). Subsec. (b). Pub. L. 101-649, Sec. 205(b)(1), inserted ``(other than a nonimmigrant described in subparagraph (H)(i) or (L) of section 1101(a)(15) of this title) after ``Every alien. V. “L” Non-Immigrants are Required to be Scrutinized by Congressional Mandate: Also set out as a note under 8 USC § 1184 is: L Visa Interagency Task Force and Inspector General Report Pub. L. 108-447, div. J, title IV, Secs. 415, 416, Dec. 8, 2004, 118 Stat. 3352, provided that: ``SEC. 415. INSPECTOR GENERAL REPORT ON L VISA PROGRAM. ``Not later than 6 months after the date of enactment of this Act [Dec. 8, 2004], the Inspector General of the Department of Homeland Security shall, consistent with the authority granted the Department under section 428 of the Homeland Security Act of 2002 (6 U.S.C. 236), examine and report to the Committees on the Judiciary of the House of Representatives and the Senate on the vulnerabilities and potential abuses in the visa program carried out under section 214(c) of the Immigration and Nationality Act (8 U.S.C. 1184(c)) with respect to nonimmigrants described in section 101(a)(15)(L) of such Act (8 U.S.C. 1101(a)(15)(L)). ``SEC. 416. ESTABLISHMENT OF TASK FORCE. ``(a) Establishment.--Not later than 6 months after the date of enactment of this Act [Dec. 8, 2004], there shall be established an L Visa Interagency Task Force that consists of representatives from the Department of Homeland Security, the Department of Justice, and the Department of State. The Secretaries of each Department and each relevant bureau of the Department of Homeland Security shall appoint designees to the L Visa Interagency Task Force. The L Visa Interagency Task Force shall consult with other agencies deemed appropriate. ``(b) Report.--Not later than 6 months after the submission of the report by the Inspector General of the Department of Homeland Security in accordance with section 6On “L” Non-Immigrant Intracompany Transferees (June 29, 2011) Page 5
  6. 6. [probably means section 415 of div. J. of Pub. L. 108-447], the L Visa Interagency Task Force shall report to the Committees on the Judiciary of the House of Representatives and the Senate on the efforts to implement the recommendations set forth by the Inspector Generals report. The L Visa Interagency Task Force shall note specific areas of agreement and disagreement, and make recommendations to Congress on the findings of the Task Force, including any suggestions for legislation. The Task Force shall also review other additional issues as may be raised by the Inspector Generals report or by the Task Forces own deliberations regarding the policies and purposes of the visa program relative to national goals and transnational commerce. VI. Regulations Lagging Behind The Statute: e-CFR Data is current as of June 24, 2011 TITLE 8--Aliens and Nationality CHAPTER I--DEPARTMENT OF HOMELAND SECURITY SUBCHAPTER B--IMMIGRATION REGULATIONS PART 214--NONIMMIGRANT CLASSES § 214.2 Special requirements for admission, extension, and maintenance of status. The general requirements in §214.1 are modified for the following nonimmigrant classes: ***** (l) Intracompany transferees — (1) Admission of intracompany transferees ***** (ii) Definitions — (A) Intracompany transferee means an alien who, within three years preceding the time of his or her application for admission into the United States, has been employed abroad continuously for one year by a firm or corporation or other legal entity or parent, branch, affiliate, or subsidiary thereof, and who seeks to enter the United States temporarily in order to render his or her services to a branch of the same employer or a parent, affiliate, or subsidiary thereof in a capacity that is managerial, executive, or involves specialized knowledge. Periods spent in the United States in lawful status for a branch of the same employer or a parent, affiliate, or subsidiary thereof and brief trips to the United States for business or pleasure shall not be interruptive of the one year of continuous employment abroad but such periods shall not be counted toward fulfillment of that requirement.On “L” Non-Immigrant Intracompany Transferees (June 29, 2011) Page 6
  7. 7. (B) Managerial capacity means an assignment within an organization in which the employee primarily: ( 1 ) Manages the organization, or a department, subdivision, function, or component of the organization; ( 2 ) Supervises and controls the work of other supervisory, professional, or managerial employees, or manages an essential function within the organization, or a department or subdivision of the organization; ( 3 ) Has the authority to hire and fire or recommend those as well as other personnel actions (such as promotion and leave authorization) if another employee or other employees are directly supervised; if no other employee is directly supervised, functions at a senior level within the organizational hierarchy or with respect to the function managed; and ( 4 ) Exercises discretion over the day-to-day operations of the activity or function for which the employee has authority. A first-line supervisor is not considered to be acting in a managerial capacity merely by virtue of the supervisors supervisory duties unless the employees supervised are professional. (C) Executive capacity means an assignment within an organization in which the employee primarily: ( 1 ) Directs the management of the organization or a major component or function of the organization; ( 2 ) Establishes the goals and policies of the organization, component, or function; ( 3 ) Exercises wide latitude in discretionary decision-making; and ( 4 ) Receives only general supervision or direction from higher level executives, the board of directors, or stockholders of the organization. (D) Specialized knowledge means special knowledge possessed by an individual of the petitioning organizations product, service, research, equipment, techniques, management, or other interests and its application in international markets, or an advanced level of knowledge or expertise in the organizations processes and procedures. (E) Specialized knowledge professional means an individual who has specialized knowledge as defined in paragraph (l)(1)(ii)(D) of this section and is a member of the professions as defined in section 101(a)(32) of the Immigration and Nationality Act.On “L” Non-Immigrant Intracompany Transferees (June 29, 2011) Page 7
  8. 8. (F) New office means an organization which has been doing business in the United States through a parent, branch, affiliate, or subsidiary for less than one year. (G) Qualifying organization means a United States or foreign firm, corporation, or other legal entity which: ( 1 ) Meets exactly one of the qualifying relationships specified in the definitions of a parent, branch, affiliate or subsidiary specified in paragraph (l)(1)(ii) of this section; ( 2 ) Is or will be doing business (engaging in international trade is not required) as an employer in the United States and in at least one other country directly or through a parent, branch, affiliate, or subsidiary for the duration of the aliens stay in the United States as an intracompany transferee; and ( 3 ) Otherwise meets the requirements of section 101(a)(15)(L) of the Act. (H) Doing business means the regular, systematic, and continuous provision of goods and/or services by a qualifying organization and does not include the mere presence of an agent or office of the qualifying organization in the United States and abroad. (I) Parent means a firm, corporation, or other legal entity which has subsidiaries. (J) Branch means an operating division or office of the same organization housed in a different location. (K) Subsidiary means a firm, corporation, or other legal entity of which a parent owns, directly or indirectly, more than half of the entity and controls the entity; or owns, directly or indirectly, half of the entity and controls the entity; or owns, directly or indirectly, 50 percent of a 50–50 joint venture and has equal control and veto power over the entity; or owns, directly or indirectly, less than half of the entity, but in fact controls the entity. (L) Affiliate means ( 1 ) One of two subsidiaries both of which are owned and controlled by the same parent or individual, or ( 2 ) One of two legal entities owned and controlled by the same group of individuals, each individual owning and controlling approximately the same share or proportion of each entity, orOn “L” Non-Immigrant Intracompany Transferees (June 29, 2011) Page 8
  9. 9. ( 3 ) In the case of a partnership that is organized in the United States to provide accounting services along with managerial and/or consulting services and that markets its accounting services under an internationally recognized name under an agreement with a worldwide coordinating organization that is owned and controlled by the member accounting firms, a partnership (or similar organization) that is organized outside the United States to provide accounting services shall be considered to be an affiliate of the United States partnership if it markets its accounting services under the same internationally recognized name under the agreement with the worldwide coordinating organization of which the United States partnership is also a member. (M) Director means a Service Center director with delegated authority at 8 CFR 103.1. ***** (3) Evidence for individual petitions. An individual petition filed on Form I–129 shall be accompanied by: ***** (vii) If the beneficiary is an owner or major stockholder of the company, the petition must be accompanied by evidence that the beneficiarys services are to be used for a temporary period and evidence that the beneficiary will be transferred to an assignment abroad upon the completion of the temporary services in the United States. (viii) Such other evidence as the director, in his or her discretion, may deem necessary. [38 FR 35425, Dec. 28, 1973] e-cfr Editorial Note: For Federal Register citations affecting §214.2, see the List of CFR Sections Affected, which appears in the Finding Aids section in the printed volume and at www.fdsys.gov ***** A Search of the List of CFR Sections Affected, (1986-2000), reveals that § 214.2 (l) has been altered in some manner at 52 FR 7063 and 56 FR 61130. The exact nature of those changes was not readily available.On “L” Non-Immigrant Intracompany Transferees (June 29, 2011) Page 9
  10. 10. VII. A sampling of Precedents Decisions Concerning “L” Non-Immigrants A. Matter of LeBlanc, 13 I&N Dec. 816 (Regional Comm’r 1971)3 held: ―The statue does not require that the 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 has 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.‖ B. Matter of Isovic, 18 I. & N. Dec. 361 (Comm’r 1982)4 held: 1.) A petitioner seeking to classify an 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 United States temporarily, where the beneficiary is the owner/major stockholder of the petitioning company, a greater degree of proof is required. C. Although even older than the one that followed it eleven years later, LeBlanc is still good caselaw while Isovic is not. 8 CFR § 214.2 (l)(1)(ii)(F) defines a ―new office‖ and is fully supported by LeBlanc as determined by the Regional Commissioner in 1971. D. 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. Jacob J. Sapochnick reported in an article5 in Immigration Daily about a recent case where an adjudicator tried to deny an ―L-1A‖ petition citing Isovic and the related regulation. The Motion filed against the denial was a success but it was reported that the Motion was arguments based on: 1.) The assertion that the petitioner’s response had satisfied all the requirements that were requested in the RFE;3 http://www.justice.gov/eoir/vll/intdec/vol13/2110.pdf4 http://www.justice.gov/eoir/vll/intdec/vol18/2933.pdf5 http://www.ilw.com/articles/2011,0628-immigrationlawblogs.shtmOn “L” Non-Immigrant Intracompany Transferees (June 29, 2011) Page 10
  11. 11. 2.) The basis for denial was improper because it was not based on an issue raised in the RFE; and 3.) That, if viewed properly, the evidence submitted actually was sufficient to overcome the single ground for denial. I agree that the basis for denial was improper but for a different reason. It was based on an obsolete and now ultra vires regulation and a Precedent both of which had been superseded by a statutory change made in Pub. L. 101-649 (IMMACT 90). That is when the ―dual intent‖ was introduced for the ―L‖ Non-Immigrant visa classification. E. Matter of Michelin Tire Corp., 17 I&N Dec. (Regional Comm’r 1978) held: ―(1) In order to be eligible for 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.‖ F. Although the ―L‖ Non-Immigrant visa does not have a ―priority date‖ at issue, it does have specific eligibility prerequisites. The ―L‖ visa is for an ―intra-company transferee‖ who was already an employee for at least one year within the prior three years, on the filing date, and who will be employed in a capacity that is managerial, or executive or involves specialized knowledge therefore they are reliant on a specific pre-existing employer-employee relationship that must have been in existence for a minimum prescribed period of time and in a certain role. The nonimmigrant petitions, like the immigrant petitions, do get adjudicated in a first-in, first-out processing queue. While there is no priority date, there are still the general qualifications as to the pre-existing relationship as defined by statute, and clarified through implementing regulations and still valid Precedents.On “L” Non-Immigrant Intracompany Transferees (June 29, 2011) Page 11
  12. 12. G. Matter of Church Scientology International, 19 I&N Dec. 593, 597 (Comm. 1988) is cited for the following words of wisdom and the plethora of citations to back it up. ―The Service, in the absence of any legislative history, regulations, or precedent decisions on the applicability to religious personnel of the "L-1" and Schedule A, Group IV, provisions, has been attempting to set standards and may have inadvertently rendered some inconsistent decisions. In spite of this, this Service is not required to approve applications or petitions where eligibility has not been demonstrated, merely because of prior approvals which may have been erroneous. Matter of Khan , 14 I&N Dec. 397 (BIA 1973), by extension; Matter of M- , 4 I&N Dec. 532 (BIA 1951; BIA, A.G. 1952); see also Pearson v. Williams , 202 U.S. 281 (1906); Lazarescu v. United States , 199 F.2d 898 (4th Cir. 1952); United States ex rel. Vajta v. Watkins , 179 F.2d 137 (2d Cir. 1950); Mannerfrid v. Brownell , 145 F. Supp. 55 (D.D.C.), affd , 238 F.2d 32 (D.C. Cir. 1956).‖ [Emphases added.] The above premise of not being bound by past mistakes or earlier incorrect interpretations, finds additional support long before and after that particular case. However, immigration practitioners must remember that it cuts both ways. Petitioners, beneficiaries, applicants, and sponsors are not bound by erroneous, outdated, superseded, obsolete, or just plain wrong interpretations either. H. From: Spencer Enterprises v. U.S., 229 F.Supp.2d 1025, 1038 n. 4 (E.D. Cal. 20016) aff‟d 345 F.3d 683 (9th Cir.2003): [In considering the 1998 AAO EB-5 Precedents.] ―There were no interpretive guidelines published in the Federal Register. See Pfaff v. HUD, 88F.3d 739, 748 (9th Cir. 1996). No officially published opinions of the INS General Counsel had been issued. See Han v. DOJ, 45 F.3d 333, 339 (9th Cir. 1995). There was therefore no prior decision, no prior rule, no prior statute, no interpretive guideline, or officially published opinion on which any party could rely in good faith. Plaintiffs had no legally vested right in or justification for relying on the prior unpublished decisions to give rise to estoppel.‖ [Emphasis added.] Just because there is a prior ―rule‖ does not mean it is set in stone and cannot change. Changes happen by various means and methods. The very next next case could be one of those means of change.6 http://www.slideshare.net/BigJoe5/spencer-enterprises-eb5decision-district-court-2001On “L” Non-Immigrant Intracompany Transferees (June 29, 2011) Page 12

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