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Page 1 of 7
PIZZERIAS, MOTELS, DRYCLEANERS, GAS STATIONS,
CONVENIENCE STORES, and JANITORIAL or LAWN SERVICES
ARE NOT the ...
Page 2 of 7
My observations are not new. There was some initial confusion about
who could qualify as a multinational busin...
Page 3 of 7
comprised of infants, toddlers, and pre-kindergarten kids. Really? Who
would believe that a glorified babysitt...
Page 4 of 7
√ This L1-A new office petition was denied on February 27, 2015. USCIS
held that that the Petitioner had not e...
Page 5 of 7
√ During my perusal of immigration-related cases in the courts, I came
across: Still Wave LLC and Gregorio H. ...
Page 6 of 7
√ Another type of business that never fails to give me a laugh is those import-
export companies that import p...
Page 7 of 7
See also:
 http://www.slideshare.net/BigJoe5/the-case-of-the-persistent-
pizzeria
 Matter of V-P-U-, Corp., ...
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PIZZERIAS, MOTELS, DRYCLEANERS, GAS STATIONS, CONVENIENCE STORES, and JANITORIALS SERVICES ARE NOT THE MULTINATIONAL BUSINESSES THAT CONGRESS INTENDED FOR L-1 or E1-3 VISAS

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PIZZERIAS, MOTELS, DRYCLEANERS, GAS STATIONS, CONVENIENCE STORES, and JANITORIALS SERVICES ARE NOT THE MULTINATIONAL BUSINESSES THAT CONGRESS INTENDED FOR L-1 or E1-3 VISAS.

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PIZZERIAS, MOTELS, DRYCLEANERS, GAS STATIONS, CONVENIENCE STORES, and JANITORIALS SERVICES ARE NOT THE MULTINATIONAL BUSINESSES THAT CONGRESS INTENDED FOR L-1 or E1-3 VISAS

  1. 1. Page 1 of 7 PIZZERIAS, MOTELS, DRYCLEANERS, GAS STATIONS, CONVENIENCE STORES, and JANITORIAL or LAWN SERVICES ARE NOT the MULTINATIONAL BUSINESSES THAT CONGRESS INTENDED for L-1A or E1-3 EXECUTIVE or MANAGER VISAS By Joseph P. Whalen (Saturday, December 12, 2015) I continue to be amazed at the blatant attempts to obtain visas for alleged multinational executives and managers of openly suspect businesses. If not suspect, then said businesses are at the very least obviously marginal, or clearly unsuitable and inappropriate for these visa classifications. Below is an excerpt from one such case wherein the petition was denied, the appeal was denied, the first motion was dismissed, and finally, the second motion was also dismissed. “The Petitioner, a "management, consulting, development" company which operates a gas station and convenience store, seeks to employ the Beneficiary as its vice president under the multinational executive of [sic – should be “or”] manager immigrant classification.” Matter of M-USA Corp., ID# 14614 (AAO Nov. 23, 2015),1 at p. 1. I was not surprised at the denials and dismissals and I doubt anyone reading this is surprised. I was only surprised that it went so far and that the petitioner wasted so much time, money, and effort on this case. Does anyone out there actually believe that a single gas station with convenience store could ever possibly qualify for a multinational executive or manager visa? Regardless of whether it is the immigrant or non-immigrant variety, and setting aside the “multinational” aspect; does anyone actually believe that this type of business could ever support an executive or manager as defined under immigration law? See INA §101(a)(44) [8 U.S.C. §1101(a)(44)] 1 http://www.uscis.gov/sites/default/files/err/B4%20- %20Multinational%20Managers%20and%20Executives/Decisions_Issued_in_2015/NOV232015_01B4203.pdf
  2. 2. Page 2 of 7 My observations are not new. There was some initial confusion about who could qualify as a multinational business and thus, a petitioner, but there has been plenty of time to settle that confusion. Some petitioners are merely desperate rather than confused. Incompetent (inexperienced or just plain stupid) and/or unscrupulous (dishonest and unprincipled) immigration “practitioners” take these desperate folks down this ill- conceived path far too often for my liking. Some of the above cited practitioners seek to drag out these adjudications through “obfuscation” (deliberate attempts to cause confusion). Said confusion might take various forms. The submission might actually address all the correct points and issues but deliberately fall shorter of the “preponderance” level of evidence than it could. Even though it is within the authority of the USCIS Officer to simply deny such a case, the Officers are usually afraid to do it and instead will send a Request For Evidence (RFE). This interim step drags out the case and provides a reason to charge more service fees. As depicted above, meritless cases can be lucrative if the petitioner and/or alien is desperate enough and freely forks over the cash for legal and/or consulting fees. Enough of my ranting, it is time to move on to additional examples of poor candidates for recognition as a multinational organizations that would naturally need executive and managerial employees as defined for visa purposes. √ The Director/General Manager of a Montessori child day care and education center was found not to qualify under the immigrant classification of multinational executive or manager. The student body is
  3. 3. Page 3 of 7 comprised of infants, toddlers, and pre-kindergarten kids. Really? Who would believe that a glorified babysitting service would qualify? Who? “The Petitioner stated that the Infant, Toddler 1, Toddler 2, Pre- Kindergarten, and Montessori teachers are responsible for meeting the educational and hygienic needs of their respective age groups. The infant teachers, for example, are responsible for feedings, diaper changes, and basic learning activities including games, songs, and basic vocabulary.” Matter of L-W-D-C-A-L-C-, L.L.C., ID# 14439 (AAO Nov. 9, 2015), at p. 6 √ In this case, just like the very first one at the beginning of this article; the Petitioner states that it intends to operate gas stations with convenience stores and eventually enter the plastics recycling industry. What are talking about here? Cash for cans? Will they buy, rent, or host a machine that reads bar codes when water, soda, and beer containers are returned? The petitioner’s plans to jump from “convenience store/gas stations” to “establishing a factory to manufacture plastic waste materials [in]to finished products” seems to be a huge and incongruent leap. It also just does not ring true, i.e. it is not credible. It is even less credible considering that this was a “new office” petition restricted to one year in order to get up to the point of supporting an executive or manager. “The Petitioner, a company that intends to operate a retail business and a plastics recycling business, seeks to temporarily employ the Beneficiary as the vice president/CFO of its new office and to classify him as an L-1A nonimmigrant intracompany transferee. See Immigration and Nationality Act (the Act) § 101(a)(15)(L), 8 U.S.C. § 1101(a)(15)(L).” Matter of T-USA, LLC, ID# 14653 (AAO Nov. 23, 2015), at p. 1
  4. 4. Page 4 of 7 √ This L1-A new office petition was denied on February 27, 2015. USCIS held that that the Petitioner had not established: (1) that there was a qualifying relationship between the Petitioner and the foreign company, (2) that the Beneficiary had been employed abroad in a managerial, executive or specialized knowledge position, (3) that the new office would support the Beneficiary in a primarily managerial or executive capacity within one year of approval of the petition, and (4) that the Petitioner had secured sufficient physical premises to house the new office. On appeal, the petitioner submitted no evidence, information, or argument, and in failing to do so, did not dispute anything. “The Petitioner, a property management company, seeks to employ the Beneficiary as an intercompany transferee under the L-1A classification. …” Matter of S-I-USA, Inc., ID# 15354 (AAO Nov. 20, 2015), at p.1 √ In another property management company case, the beneficiary is described as a "function manager" and it is claimed that the subordinate employees and intermittently engaged independent service providers, e.g., a handyman, a lawn service, an accountant, and a carpet cleaner, relieve the beneficiary of the need to primarily perform non- qualifying duties. I do not know about anyone else but I have difficulty believing that a “general manager” who can be freed from the day-to-day tasks of the business by the employees in the jobs cited above could be classified as employed in an executive or managerial capacity as defined in immigration law. This information is directly applicable to the next case that follows.
  5. 5. Page 5 of 7 √ During my perusal of immigration-related cases in the courts, I came across: Still Wave LLC and Gregorio H. Henriques v. US Attorney General, Secretary of the Department of Homeland Security, Director of the US Citizenship & Immigration Services, Chief of the Administrative Appeals Office, and Director of the Texas Service Center of the US Citizenship & Immigration Services, No. 6:13-CV-152-ORL-31TBS (M.D. FL 05/02/13) which was voluntarily dismissed due to AAO reopening its decision, sustaining the appeal, and possibly remanding the case to CSC for further processing. Still Wave involved an I-140 filed for a multinational executive or manager immigrant visa. The beneficiary was also the petitioner. However, this case had a much bigger twist. Mr. Henriques had already been granted LPR status through approval of an I-485. It was improper procedure to simply try to revoke the I-140 at that point. The proper course of action was to commence rescission proceedings as per INA § 246 [8 U.S.C. § 1256] and 8 C.F.R. § 246.1 et seq. Rescission of adjustment of status has a statutory time limit of five-years from date of adjustment to service of notice of intent to rescind LPR status. Based on the approved I-140 petition, Mr. Henriques obtained lawful permanent resident status in the United States on March 14, 2006. USCIS, in fact, failed to follow its own regulations which establish the legal steps that must be followed in such cases. USCIS had until March 1, 2011, to serve notice. It appears that that did not happen. USCIS then had to rely on service of a Notice To Appear and referral to immigration court. It is unknown what happened but unless there was some grand fraud and extenuating circumstances, it was probably not worth the effort to do so.
  6. 6. Page 6 of 7 √ Another type of business that never fails to give me a laugh is those import- export companies that import poor quality (or sometimes illegal) products destined for a flea market or dollar store. The most recent business fitting that description was denied an immigrant visa and its appeal was denied in Matter of R-I- Inc., ID# 14086 (AAO Oct. 27, 2015). Are you asking if I am being cynical in calling this merchandise flea market fare? I can back this one up with an excerpt! The chart below is in the AAO Appeal Dismissal. “A. Facts The Petitioner filed Form I-140 on May 20, 2013. On the petition form, the Petitioner indicated that it had eight employees. A May 17, 2013, cover letter submitted with the petition indicated: "The company has seven (7) employees, who are managed and directed by the beneficiary." The letter did not specify whether the Beneficiary's intended role in the United States would be managerial or executive. Copies of IRS Forms 941, Employer's Quarterly Federal Tax Returns, indicated that the Petitioner had eight employees in the fourth quarter of 2012 and seven in the first quarter of 2013. An organizational chart submitted with the petition showed the following seven-employee structure: ” At p. 3 Aside from all of the other problems with this case, and there were other problems, common-sense has to be used here. They imported merchandise destined for their store or stall at a flea market! I highly doubt that this was what Congress had in mind for such visas! What do you think?
  7. 7. Page 7 of 7 See also:  http://www.slideshare.net/BigJoe5/the-case-of-the-persistent- pizzeria  Matter of V-P-U-, Corp., ID# 13828 (AAO Sept. 18, 2015) concerns the President/CEO and majority owner of both the Petitioner and its Mexican affiliate business; which allowed him to be a self-petitioner. He would fill said position for a parking management, valet parking, vending business that allegedly has 17 employees and gross annual income of $400,000.  Matter of ABCF-, LLC, ID# 13331 (AAO Sept. 18, 2015) pertains to an operator of retail sporting goods stores, seeking to employ the Beneficiary as its president and chief executive officer (CEO) under the immigrant classification of a multinational executive or manager. An organizational chart showed the Beneficiary at the top level, with four departments on the second level: Brick & Mortar Stores, Online Store, Marketing, and Accounting. The chart indicated that an "Outside Firm" handled the Petitioner's accounting functions. The chart listed one employee (a marketing manager) under Marketing, and one vacant e- commerce manager position under Online Store. The remaining department, Brick and Mortar Stores, encompassed a manager and four shop assistants. These merely a few examples. There are many more, if you look.

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