CONTINENTAL GRAIN COMPANY

Interim Decision #2148

MATTER OF CONTINENTAL GRAIN COMPANY

In Visa Petition Proceedings

OMA—N,943

Decided by District Director May 8, 1972

An intervening temporary stay in the United States as a nonimmigrant trainee

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 "continuously for one year" by a

foreign subsidiary of the petitioning firm "immediately preceding the time of

his application for admission into 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 so employed for over 5 months, he has met the one-year

continuous employment requirement of section 101(a)(15)(L) of the Act.

ATTORNEY OR REPRESENTATIVE: William H. Jaquith

Director of Management Employment

Continental Grain Company

2 Broadway

New York, New York 10004

The petitioner desires to bring the beneficiary to the United

States temporarily to serve in the capacity of grain merchandiser

at Des Moines, Iowa. The beneficiary has been employed by

Continental Grain Company (Canada) Ltd. since May 27, 1968 as a

grain merchandiser. The Canadian concern is a subsidiary of the

United States concern, a Delaware corporation.

Section 101(a)(15)(L) of the Immigration and Nationality Act, as

amended by the Act of April 7, 1970, also known as P.L. 91-225 (84

Stat. 116), classifies the following as a nonimmigrant:

An alien who, immediately 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 hnowledgn, and the a lien spouse

and minor children of any alien if accompanying him or following to join him.

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Interim Decision #2148

The beneficiary's employment with the petitioner's Canadian

subsidiary was in a capacity requiring specialized knowledge

regarding marketing conditions, trading techniques, and transpor-

tation rates, as well as the company's policies and financial

program. The duties for which his services are now sought include

purchases of U.S. origin grain for further sale abroad and will also

be in a capacity requiring the specialized knowledge contemplated

by section 101(aX15XL).

The beneficiary, from June 1, 1969 to October 1, 1971, received

specialized training in the United States regarding world -wide

aspects of origination and distribution of grain. During this period

he was a trainee pursuant to section 101(a)(15)(H)(iii) of the Act.

His employment under consideration, then, consists of the follow-

ing:

1. May 27, 1968 to May 31, 1969: somewhat over one year with Continental Grain

Co. (Canada), Ltd.

2. June 1, 1969 to October 1, 1971: twenty-eight months training in the United

States; and

3. October 2, 1971 to date: seven months with Continental Grain Co. (Canada),

Ltd.

The issue before us is whether the above employment satisfies

the statutory requirement that he is "an alien who, immediately

preceding the time of his application for admission into the United

States, has been employed continuously for one year by a firm ..."

(Emphasis supplied.) A review of available published precedent

decisions has not disclosed a case ruling on the issue. We will,

therefore, turn to the legislative history.

H.R. Report No. 851, 91st Cong., 1st Sess., by the Committee on

the Judiciary, cited the broad purpose of the then-proposed legisla-

tion, now enacted as section 101(a)(15)(L) of the Immigration and

Nationality Act, as "to facilitate the entry into the United States

of certain classes of nonimmigrant aliens."

More specifically, the Committee, at page 3 of the report, stated:

The testimony of witnesses clearly establishes that existing law restricts and

inhibits the ability of international companies to bring into the United States

foreign nationals with management, professional and specialist skills and

thereby enable American business to maintain and improve the management

effectiveness of international companies to expand U.S. exports and to be

competitive in overseas markets.

Existing nonimmigrant provisions of the Immigration and Nationality Act

offer little or no relief in the transfer of executive personnel since such entries

are also limited to specific positions which are temporary in nature. Conse-

quently, visas must be denied to alien executive personnel who are transferred

to the United States to continue employment with a domestic corporation or

firm, or a domestic affiliate or subsidiary of a foreign corporation.

This interchange of personnel is important since it offers an opportunity for

an individual to advance within the worldwide organizations without regard to

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Interim Decision #2148

nationality, it enables foreign nationals to learn American management tech-

niques by placing them in key positions in the United States and thus more

effectively manage the affiliate operations of U.S. companies when they return

overseas. Experience has demonstrated that a real contribution in the conduct

of international business results from the cross-fertilization of ideas through the

use of special skills of personnel of different nationalities.

Page 5 of the report added:

This amendment would help eliminate problems now faced by American

companies having offices abroad in transferring key personnel freely within the

organization. This proposal would meet the objective of American industry

which has been seriously hampered in transferring personnel, particularly from

Canada.

Testimony before the committee established that the present immigration law

and its administration have restricted the exchange and development of mana-

gerial personnel from other nations vital to American companies competing in

modern-day world trade. Executives of American companies detailed for assign-

ments in foreign branch offices, or subsidiaries and affiliate companies abroad,

find little difficulty in being admitted to foreign countries as nonimmigrants for

duty tours of several years duration. Such intracompany transfers have contrib-

uted immeasurably to the growth of American enterprise throughout the world

and to the international trade of the United States.

In the case now before us, the beneficiary was employed abroad

by the petitioner's subsidiary in a qualifying capacity for more

than the required "one year". He now seeks to enter the United

States temporarily to continue his services in a qualifying capac-

ity. However, within the past twelve months the beneficiary has

spent over four months in the United States. Does this disqualify

him under the "immediately preceding" provision of the statute?

It is our conclusion that the beneficiary's period of training

within the United States, during which time he was in the United

States lawfully in pursuit of further training related to his qualify-

ing employment, should not be regarded as interruptive of the

concept that he "has been employed continuously for one year by

. .. the same employer or a subsidiary thereof" within the meaning

of section 101(a)(15)(L). Such an interpretation, we believe, is

consistent with the purpose and intent of this legislation as

indicated in the above-cited legislative history. Accordingly, we

find that the beneficiary's employment with the petitioner's sub-

sidiary in a capacity requiring specialized knowledge for the

seven-month period since October 2, 1971, together with his well

over five months' employment with that subsidiary during the

period immediately preceding his last admission to the United

States as a trainee, meets that requirement. It is also concluded

that the beneficiary is otherwise qualified for classification under

section 101(a)(15XL) of the Act.

It is orderod that the petition be and hereby is granted.

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