AAO I-129 Non-Immigrant Worker Non-Precedent Decisions (New Format) Posted As Of Thursday, October 1, 2015 Compiled By Joseph P.

Transcription

1 SEP012015_01D2101.pdf Matter of N-H-S-, LLC, ID# (AAO Sept. I, 2015) SEP022015_01D2101.pdf Matter of B-S-S-, INC, ID# (AAO Sept. 2, 20 15) MOTION OF AAO DECISION DISMISSED The Petitioner, a healthcare staffing and placement company, seeks to employ the beneficiary as a clinical coordinator and to classify him as a nonimmigrant worker in a specialty occupation.... The Director denied the petition, concluding that the Petitioner did not establish that the proffered position qualifies as a specialty occupation.. The Petitioner submitted an appeal of the Director's decision to us. We reviewed the record of proceeding and determined it did not contain sufficient evidence to establish that the Petitioner would employ the Beneficiary in a specialty occupation position. We provided a comprehensive analysis of the Director's decision and dismissed the appeal. The petitioner now submits the instant motion to reconsider. APPEAL OF CALIFORNIA SERVICE The Petitioner, a business development and informational services, seeks to employ the Beneficiary as a quality analyst and to classify her as a nonimmigrant worker in a joseph.whalen774@gmail.com PAGE 1 OF 22

2 specialty occupation. The Director denied the petition, finding that the Petitioner does not establish that it will be a "United States employer" having an employer-employee relationship with the Beneficiary as an H-1B temporary employee. Thereafter, the Petitioner filed a motion to reopen, which was dismissed. The matter is now before us on appeal. SEP032015_01D2101.pdf Matter of S- LLC-, ID#14007 (AAO Sept. 3, 2015) SEP032015_02D2101.pdf Matter of A-I-, ID#14180 (AAO Sept. 3, 2015) APPEAL OF CALIFORNIA SERVICE The Petitioner, a health and wellness products business, seeks to employ the Beneficiary as an accountant and to classify her as a nonimmigrant worker in a specialty occupation.. The Director denied the petition, finding that the evidence of record did not establish that the proffered position qualifies as a specialty occupation. APPEAL OF VERMONT SERVICE The Petitioner, a vocational institute, seeks to employ the Beneficiary as an allied health instructor and to classify her as a nonimmigrant worker in a specialty occupation.. joseph.whalen774@gmail.com PAGE 2 OF 22

3 The Director revoked the approval of the visa petition finding that the Petitioner had violated the terms and conditions of the approved petition. Specifically, the Director noted that an administrative site visit to verify the Beneficiary's employment revealed that the Petitioner was not paying the Beneficiary the proffered wage established by the terms and conditions of the approved petition. On appeal, the Petitioner asserts that the Director's basis for revocation of the approval of the petition was erroneous. A review of the record [sic] of U.S. Citizenship and Immigration Services indicates that the Beneficiary adjusted status to that of a lawful permanent resident on May 20, Because the Beneficiary is presently a lawful permanent resident, further pursuit of the matter at hand is moot. Therefore, this appeal is dismissed. SEP102015_01D2101.pdf Matter of N-E-S-, LLC, ID# (AAO Sept. 10, 2015) APPEAL OF CALIFORNIA SERVICE The Petitioner, an information technology services firm, seeks to employ the Beneficiary as a computer systems analyst and to classify him as a nonimmigrant worker in a specialty occupation.. joseph.whalen774@gmail.com PAGE 3 OF 22

4 The Director denied the petition, finding the evidence insufficient to establish that (1) the proffered position qualifies as a specialty occupation; and (2) the Petitioner will have an employer-employee relationship with the Beneficiary The agency made clear long ago that speculative employment is not permitted in the H-1 B program. A 1998 proposed rule documented this position as follows: Historically, the Service has not granted H-1 B classification on the basis of speculative, or undetermined, prospective employment. The H-1B classification is not intended as a vehicle for an alien to engage in a job search within the United States, or for employers to bring in temporary foreign workers to meet possible workforce needs arising from potential business expansions or the expectation of potential new customers or contracts. To determine whether an alien is properly classifiable as an H-1B nonimmigrant under the statute, the Service must first examine the duties of the position to be occupied to ascertain whether the duties of the position require the attainment of a specific joseph.whalen774@gmail.com PAGE 4 OF 22

5 bachelor's degree. See section 214(i) of the Immigration and Nationality Act (the "Act"). The Service must then determine whether the alien has the appropriate degree for the occupation. In the case of speculative employment, the Service is unable to perform either part of this two-prong analysis and, therefore, is unable to adjudicate properly a request for H-1B classification. Moreover, there is no assurance that the alien will engage in a specialty occupation upon arrival in this country. 63 Fed. Reg , (June 4, 1998). While a petitioner is certainly permitted to change its intent with regard to non-speculative employment, e.g., a change in duties or job location, it must nonetheless document such a material change in intent through an amended or new petition in accordance with 8 C.F.R (h)(2)(i)(e). SEP142015_01D2101.pdf Matter of B-D-C-, Corp. ID# (AAO Sept. 14, 2015) APPEAL OF VERMONT SERVICE The Petitioner, a studio, seeks to employ the Beneficiary as a set designer and classify her joseph.whalen774@gmail.com PAGE 5 OF 22

6 as a as a nonimmigrant worker in a specialty occupation. The primary issue is whether the Petitioner has provided sufficient evidence to establish that it will employ the beneficiary in a specialty occupation... In the letter submitted in support of the instant petition, the Petitioner states that it "provides photography video and design services for individuals and companies." The Petitioner also states that its clients include fashion magazine companies, fine food restaurants, schools, designers, and bloggers. With respect to the proffered position, the Petitioner states that "candidates must possess at least a Bachelor's degree in set design or related academic field." The Petitioner also provided the following description of the job duties, along with the percentage of time spent performing each duty:. See: Entry Level Jobs Are Poor Candidates for H1B Visas The Petitioner submitted a Labor Condition Application (LCA) in support of the instant H-1 B. The Petitioner indicates that the proffered position corresponds to the occupational category "Set and Exhibit Designers"-SOC (ONET/OES Code) , at a Level I (entry level) wage. joseph.whalen774@gmail.com PAGE 6 OF 22

7 SEP142015_02D2101.pdf Matter of F-IPSM-S-, LLC, ID# (AAO Sept. 14, 20 15) APPEAL OF VERMONT SERVICE AS MOOT.A review of U.S. Citizenship and Immigration Services (USCIS) records indicates that on August 12, 2015, subsequent to the denial of the instant petition, the Petitioner filed another Form I- 129 seeking nonimmigrant H-1B classification on behalf of the Beneficiary. USCIS records further indicate that this other petition was approved on August 24, Because the Beneficiary in the instant petition has been approved for H-1B employment with the Petitioner, further pursuit of the matter at hand is moot. SEP142015_03D2101.pdf Matter of O-, Inc., ID# (AAO Sept. 14, 2015) APPEAL OF VERMONT SERVICE AS MOOT U.S. Citizenship and Immigration Services (USCIS) records indicate that on April 13, 2015, a date subsequent to the denial of the instant petition, the Petitioner filed another Form I-129 seeking nonimmigrant H -1 B classification on behalf of the Beneficiary. USCIS records further indicate that this joseph.whalen774@gmail.com PAGE 7 OF 22

8 petition was approved on May 7, We sent a letter to the Petitioner requesting verification of its intent to pursue the appeal on July 1, 2015, and have not received a response. Because the Beneficiary of the instant petition has been approved for H-1B employment with the Petitioner, further pursuit of the matter at hand is moot. SEP142015_04D2101.pdf Matter of M-E-, Inc., ID# (AAO Sept. 14, 20 15) MOTION OF ADMINISTRATIVE APPEALS OFFICE DECISION DENIED The Petitioner, a fast-food restaurant, seeks to employ the Beneficiary as a financial manager and to classify him as a nonimmigrant worker in a specialty occupation. On May 12, 2011, the Director of the Vermont Service Center denied the nonimmigrant visa petition. The Petitioner appealed this denial to the Administrative Appeals Office (AAO), and we dismissed the appeal on November 7, On December 6, 2012, the Petitioner filed a motion to reopen and reconsider, which we denied on July 14, On August 14, 2014, the joseph.whalen774@gmail.com PAGE 8 OF 22

9 Petitioner again filed a motion to reopen and reconsider, which we denied on February 6, The matter is once again before us on a motion to reopen and reconsider. The combined motion will be denied pursuant to 8 C.F.R (a)(2), (3), and (4). SEP102015_01D7101.pdf Matter of B-I-U- Corp., ID# (AAO Sept. 10, 2015) MOTION OF AAO DECISION DENIED The Petitioner, a corporation organized in the State of New Jersey that engages in the wholesale of general merchandise, seeks to extend the employment of its vice-president as an L-1 A nonimmigrant intracompany transferee. See section 101(a)(15)(L) of the Immigration and Nationality Act (the Act), 8 U.S.C. 1101(a)(15)(L). The Director, Vermont Service Center, denied the petition. The Petitioner has subsequently filed a total of three appeals and nine motions with the Administrative Appeals Office (AAO). Most recently, we dismissed the Petitioner's motion to reopen and reconsider in a decision dated January 8, The matter is again before us on a motion to reopen and reconsider. The motion will be denied. joseph.whalen774@gmail.com PAGE 9 OF 22

10 The Director denied the petition on February 24, 2004, concluding that the Petitioner did not establish that the Beneficiary would be employed in a primarily managerial or executive capacity under the extended petition. SEP102015_02D7101.pdf Matter of K-I-, Inc., ID# (AAO Sept. 10, 2015) APPEAL OF VERMONT SERVICE The Petitioner, a New Jersey corporation operating a comprehensive software consulting business, seeks to employ the Beneficiary as an L-1B nonimmigrant intracompany transferee..... The Petitioner seeks to employ the Beneficiary in the position of Technical Recruiter for a period of two years. The director denied the petition, concluding that the Petitioner did not establish that: (1) the Beneficiary's employment abroad was in a position that was managerial, executive, or involved specialized knowledge, (2) the Beneficiary possesses specialized knowledge, and (3) the Beneficiary's position in the United States involves specialized knowledge. joseph.whalen774@gmail.com PAGE 10 OF 22

11 SEP112015_01D7101.pdf Matter of H-G-, LLC, ID# (AAO Sept. 11, 2015) APPEAL OF VERMONT SERVICE CENTER DECISION SUMMARILY DISMISSED The Petitioner, an entity that operates as an importer and exporter of feeder stock, seeks to employ the Beneficiary in the position of director of international sales.. On December 15, 2014, the Director issued a decision denying the petition based on the conclusion that the Petitioner does not have a qualifying relationship with the Beneficiary's former employer abroad and is therefore ineligible for the immigration benefit sought herein. The Petitioner subsequently filed an appeal. However, the Petitioner submitted no evidence or information addressing the actual grounds for denial; nor did the Petitioner dispute the ground for denial.. SEP112015_02D7101.pdf Matter of U-S-A-M-, Inc., ID# (AAO Sept. 11, 2015) APPEAL OF VERMONT SERVICE The Petitioner, a business engaged in the production and distribution of baked goods, seeks to classify the beneficiary as an intracompany transferee... It seeks to employ the Beneficiary as its "Operations joseph.whalen774@gmail.com PAGE 11 OF 22

12 Manager" for a period of one year in order to open a new office in the United States. The Director denied the petition, concluding that the Petitioner did not establish that the Beneficiary has been or will be employed in a primarily managerial or executive capacity. SEP142015_01D7101.pdf Matter of M-I-, LLC, ID# (AAO Sept. 14, 20 15) APPEAL OF VERMONT SERVICE The Petitioner, an import and export company trading in automobiles and automobile parts, seeks to employ the Beneficiary as an L-1 A nonimmigrant intracompany transferee... The Director denied the petition, concluding that the evidence of record did not establish that the Beneficiary will [be] employed in a qualifying managerial or executive position within one year of approval of the petition, or that the new office "will be able to meet its financial obligations the first year of operation." Although we will affirm the Director's finding that the Petitioner did not establish by a preponderance of the evidence that it will employ the Beneficiary in a qualifying managerial or executive capacity within one joseph.whalen774@gmail.com PAGE 12 OF 22

13 year, we will withdraw the Director's observation that the Petitioner did not establish that it "will be able to meet its financial obligations the first year of operation." Upon review, the Petitioner provided sufficient evidence to establish that it has funding to cover its startup costs and initial operating expenses, and it provided adequately supported sales projections to demonstrate how it intends to cover costs accrued during the initial year of operations. The Petitioner does not need to establish that all projected first year operating costs and expenses will be covered by an initial investment made prior to the time of filing. Nevertheless, for the reasons discussed above, we find that the record does not establish that the Beneficiary would be employed in a qualifying managerial or executive capacity within one year of the petition approval. Accordingly, the appeal will be dismissed. III. ADDITIONAL ISSUE The remaining issue addressed by the Director is the Beneficiary's foreign employment in a qualifying capacity. Specifically, the Director stated: "Although not addressed in the RFE, if you choose to appeal this decision you will need to establish the beneficiary has been employed joseph.whalen774@gmail.com PAGE 13 OF 22

14 in a qualifying managerial or executive capacity... for one (1) year in the past three (3) years." On appeal, the Petitioner summarizes the evidence submitted to establish that the Beneficiary was employed in a qualifying capacity by its Nigerian affiliate. The Petitioner asserts that "Since this was not an issue that was included in the RFE in the initial petition, this cannot be a reason for denial of the case, and bringing the issue up in one sentence as a matter of fact in the denial decision is arbitrary, capricious and against USCIS policy." We agree with the Petitioner that the Director did not properly deny the petition on this basis. When denying a petition, a director has an affirmative duty to explain the specific reasons for the denial; this duty includes informing a petitioner why the evidence failed to satisfy its burden of proof pursuant to section 291 of the Act, 8 U.S.C See 8 C.F.R (a)(l)(i). As the Director did not provide the Petitioner with information regarding specific evidentiary deficiencies or even clearly deny the petition based on a finding that Petitioner did not establish that the Beneficiary was employed by the foreign entity in a qualifying capacity, joseph.whalen774@gmail.com PAGE 14 OF 22

15 we will withdraw the Director's comment and will not address this issue further. SEP152015_01D7101.pdf Matter of R-A-A-, Inc., ID# (AAO Sept. 15, 2015) APPEAL OF VERMONT SERVICE CENTER DECISION SUSTAINED The Petitioner, an architectural planning and design company, seeks to employ the Beneficiary as an architect/parametric design specialist under the L-1B nonimmigrant classification..... Upon reviewing the entire record of proceeding as supplemented by the Petitioner's submission on appeal, we conclude that the record now contains sufficient evidence to overcome the bases for the Director's decision. Specifically, the totality of the evidence now establishes that the Beneficiary has special knowledge of the Petitioner's techniques in international markets and that his special knowledge is distinct in comparison to the general modeling and architectural design skills that are generally found within the Petitioner's group. Additionally, the totality of the evidence establishes that the Beneficiary is one of the few employees within its organization who possesses advanced knowledge of the PAGE 15 OF 22

16 Petitioner's processes and procedures in his area of expertise, as the record shows that he contributed to the development of such processes during his tenure with the Petitioner's group overseas. Finally, the totality of the record establishes that the Beneficiary has been employed abroad and will be employed in the United States in a position requiring this specialized knowledge. SEP142015_01D8101.pdf Matter of W-V-T-USA-; LLC, ID# (AAO Sept. 14, 2015) 1 Pursuant to 8 C.F.R (o)(12)(ii), an extension of stay may be authorized in increments of up to one year for an 0-1 beneficiary to continue or complete the same activity for which he or she was admitted plus an additional 10 days to allow the beneficiary to get his or her personal affairs in order. A five-year extension of stay cannot be granted. APPEAL OF VERMONT SERVICE The Petitioner, a baseball instruction and coaching business, seeks to classify the Beneficiary as a foreign national of extraordinary ability in athletics. See Immigration and Nationality Act (the Act) 101(a)(15)(0)(i), 8 U.S.C. 1101(a)(15)(0)(i). The Director, Vermont Service Center, denied the petition. The Petitioner currently employs the Beneficiary as a baseball coach pursuant to an approved O-1 petition. The Petitioner seeks to extend the Beneficiary's employment for a period of five years. 1 After issuing two requests for evidence (RFEs) and then considering the record, the joseph.whalen774@gmail.com PAGE 16 OF 22

17 Director denied the petition, concluding that the Petitioner did not establish that the Beneficiary has achieved the required national or international acclaim in his field. Specifically, the Director determined that the Petitioner had not satisfied the initial evidentiary requirements set forth at 8 C.F.R (o)(3)(iii), which requires documentation of a one-time achievement or materials that meets at least three of the eight regulatory criteria. On appeal, the Petitioner submits a brief and additional documentation. For the reasons discussed below, the Petitioner has not satisfied the plain language requirements of at least three criteria. SEP032015_01D9101.pdf Matter of F-I-G-, Inc., ID# (AAO Sept. 3, 2015) APPEAL OF VERMONT SERVICE The Petitioner, a talent management company, seeks to classify the Beneficiaries as members of an internationally recognized entertainment group. See the Immigration and Nationality Act (the Act) 101(a)(15)(P)(i), 8 U.S.C. 1101(a)(15)(P)(i). The Director, Vermont Service Center, denied the petition... On appeal, the Petitioner asserts that it has established that the Beneficiaries are an joseph.whalen774@gmail.com PAGE 17 OF 22

18 internationally recognized entertainment group. The Petitioner submits additional documentary evidence in support of the appeal. On May 5, 2015, we issued a notice of derogatory information and intent to dismiss (NOID) pertaining to the Petitioner's corporate status. The Petitioner responded. Upon review, and for the reasons stated herein, while the Petitioner has overcome the concerns in our NOID, we concur with the Director's determination that the Petitioner has not established the Beneficiaries' eligibility for the requested classification. SEP032015_01D13101.pdf Matter of C-G-S-E-O-, ID# (AAO Sept. 3, 2015) APPEAL OF CALIFORNIA SERVICE AS MOOT On August 19, 2015, the Petitioner requested that the appeal and petition be cancelled because the job offered is no longer available. The regulation at 8 C.F.R (b)( 6), however, indicates that an application or petition may not be withdrawn once a decision is issued by U.S. Citizenship and Immigration Services. Nonetheless, as the request to withdraw the original petition was received before the issuance of our decision in this matter, the joseph.whalen774@gmail.com PAGE 18 OF 22

19 issues in this proceeding are now moot, and the appeal will be dismissed on this basis. SEP082015_01D13101.pdf Matter of B-T-F-, ID# (AAO Sept. 8, 2015) MOTION OF ADMINISTRATIVE APPEALS OFFICE DECISION DENIED The Petitioner, a Hindu temple, seeks to employ the Beneficiary as a nonimmigrant religious worker to perform services as a temple paricharaka (chef). See Immigration and Nationality Act (the Act) 101(a)(15)(R), 8 U.S.C. 1101(a)(15)(R). The Director, California Service Center, denied the petition and we dismissed a subsequent appeal. The matter is now before us on a motion to reopen and reconsider. The motion will be denied. In order to properly file a motion to reopen or reconsider, the regulation at 8 C.F.R (a)(1)(i) provides that a petitioner must file the complete motion within 30 days of service of the unfavorable decision. If the decision was mailed, the motion must be filed within 33 days. See 8 C.F.R (b). The date of filing is not the date of mailing, but the date of actual receipt. See 8 C.F.R (a)(7)(i). For a motion to reopen, the regulation grants U.S. joseph.whalen774@gmail.com PAGE 19 OF 22

20 Citizenship and Immigration Services (USCIS) the discretion to excuse a reasonable delay that is beyond the control of the petitioner. See 8 C.F.R (a)(1)(i). There is no regulation allowing for an untimely motion to reconsider. A motion that does not meet applicable requirements shall be dismissed. 8 C.F.R (a)(4). In this case, the record reflects that our decision dismissing the appeal was issued on January 16, Our decision indicated that any motion must be filed within 33 days of the date of the decision and stated in bold, "Do not file a motion directly with the AAO." Nonetheless, the Petitioner submitted the motion, without fee, directly to our office on February 26, 2015, forty-one days after the decision was issued. We returned the documentation to the petitioner with instructions as to where to file the motion and informed the petitioner that the filing fee for a Form I-290B, Notice of Appeal or Motion, was $630. On March 20, 2015, the USCIS Phoenix Lockbox rejected the petitioner's motion as filed without the proper fee. The motion with the appropriate fee was filed with USCIS on March 31, 2015, 74 days after we issued our decision. Although the regulation at 8 C.F.R (a)(1)(i) allows us to excuse a reasonable joseph.whalen774@gmail.com PAGE 20 OF 22

21 delay that is beyond the control of the applicant in the exercise of discretion for motions to reopen, the Petitioner has not addressed the untimely filing in this case. Therefore, the motion will be denied. SEP082015_02D13101.pdf Matter of M-M-A -C-, ID# (AAO Sept. 8, 20 15) MOTION OF ADMINISTRATIVE APPEALS OFFICE DECISION DENIED The Petitioner, a church, seeks to employ the Beneficiary as a nonimmigrant religious worker to perform services as a pastor. See Immigration and Nationality Act (the Act) 101(a)(15)(R), 8 U.S.C. 1101(a)(15)(R). The Director, California Service Center, denied the petition, concluding that the Petitioner did not establish how it intends to compensate the Beneficiary. The matter is now before us on appeal. The appeal will be dismissed... Considering the record in its totality, the Petitioner has not met its burden of establishing by a preponderance of the evidence its intent to compensate the Beneficiary as stated. joseph.whalen774@gmail.com PAGE 21 OF 22

22 SEP102015_01D13101.pdf Matter of B-F-J-S-D-A-C-M-, ID# (AAO Sept. 10, 2015) APPEAL OF CALIFORNIA SERVICE The Petitioner, a church, seeks to classify the Beneficiary as a nonimmigrant religious worker to perform services as a "Religious Bible Worker." See 101(a)(15)(R) of the Immigration and Nationality Act (the Act), 8 U.S.C. 1101(a)(15)(R). The Director, California Service Center, initially approved the employment-based nonimmigrant visa petition on November 29, On further review, the Director determined that the Beneficiary was not eligible for the visa preference classification. Accordingly, the Director served the Petitioner with a notice of intent to revoke (NOIR) the approval of the preference visa petition stating the reasons therefore and subsequently exercised her discretion to revoke the approval of the petition on December 9, The matter is now before us on appeal. We will dismiss the appeal. Please note that this is only current as of date and time of posting. joseph.whalen774@gmail.com PAGE 22 OF 22