Interim Decision #2933

Interim Decision #2933

MATTER OF ISOVIC

In Visa Petition Proceedings

LOS-N-45355

Decided by Commissioner June 6, 1982

(1)A petitioner seeking to classify an alien under section 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 Staten temporarily, where the beneficiary in the owner/major atockholdei

of the petitioning company, a greater degree of proof is required.

ON BEHALF OF PETITIONER: Robert L. Miller, Esquire

Miller and Miller

2500 Wilshire Boulevard

Suite 1019

Los Angeles, California 90057

This matter is before the Commissioner upon certification in accordance with 8 C.F.R. 103.4. The petition was denied by the District

Director. An appeal to the Regional Commissioner was dismissed on

November 25, 1981.

The petitioner, Bis-Shaefer Corporation, seeks to classify the benefi. ciary, Midhat Isovic, as an intra-company transferee. The petitioner is

incorporated in the state of California to conduct a heavy construction

business and the import and export of electronic apparatus. A 51%

share of the petitioning corporation is owned •by the beneficiary. The

.beneficiary's presence in the United States is sought to manage and

direct the corporation's activities in the United States. Evidence has

been submitted that the beneficiary was employed abroad for more than

one year by the Shaefer Company Ltd., of Munich, Germany, and by

the BIS Company, also of Munich, Germany. Evidence demonstrates

that the overseas companies are affiliated with the petitioner inasmuch

as they are under the common ownership and control of the beneficiary

and that the beneficiary was substantially involved in management and

executive duties for the overseas companies for the requisite one year

or more. Both overseas "affiliates" are incorporated in Germany. '

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In Matter of Tessel, Inc., 17 I&N Dec. 631 (A.C. 1981), the Service

determined that a corporation and its stockholders are separate legal

entities and that a corporation can employ and petition for a stockholder.

The Regional Commissioner concedes that the petitioner has established the foregoing facts, but in his decision of December 8, 1981, found

that the petitioner had failed to establish that the beneficiary was coming to the United States temporarily and, therefore, the beneficiary was

not entitled to classification as an intra-company transferee. The petitioner argues that section 101(a)(15)(L) of the Immigration and - Nationality Act, as amended, 8 U.S.C. 1101(a)(15)(L), does not require the

petitioner to establish that a beneficiary is coming temporarily, and that

the temporariness of a beneficiary's stay is an issue which may be considered only in conjunction with an application for visa issuance before a

United States consular officer. The petitioner, through counsel, also

argues that the Regional Commissioner has inappropriately imposed

the requirement that the services required of the beneficiary be of a

temporary nature. The petitioner correctly comments that the temporariness of an occupational position is a statutory requisite for classifying a temporary worker under section 101(a)(15)(H)(ii) of the Act.

Section 101(a)(15)(L) of the Act provides for the classification and

admission of an intra-company transferee as follows:

(I.) 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 knowledge, and the alien spouse and minor children of any such

alien if accompanying him or following to join him.

Title 8, Code of Federal Regulations 214.2(1)(1) provides that, "A

petition approved under this paragraph is valid for the period of established need for the beneficiary's temporary services, but not to exceed

three years." Service Operations Instruction 214.2(1) provides that, "A

petitioner for an L-1 nonimmigiant must establish that he is seeking

such classification for the beneficiary to enable the latter to enter temporarily to perform specified services."

The same Operations Instruction provides that the beneficiary's intent

With regard to the temporariness of his proposed stay in the United

States is pertinent primarily to the beneficiary's eligibility for issuance

of an L 1 visa and his admission to the United States as a nonimmigrant.

In the foregoing discussion and references, the concept of "temporariness" has two separate applications: the intent of the alien beneficiary to enter temporarily, and the intent of the employer to use the

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beneficiary's services temporarily. The Service has long held that the

intent of the beneficiary is not relevant in a nonimmigrant visa petition

proceeding. Matter of University of Oklahoma, 14 I&N Dec. 213 (R.C.

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1972). In this context, temporariness relates to the alien's eligibility for

classification as a nonimmigrant and is to be considered in the visa

issuance process or at the time of his application for admission to the

United States. The intention of the petitioning employer to use a beneficiary temporarily or permanently, however, does relate to the nonimmigrant visa petition process for temporary workers under either the "H"

or "L" nonimmigrant categories. Sections 101(a)(15)(H) and (L) clearly

state that the beneficiary must be coming temporarily. Matter of Lee,

18 I&N Dec. 96 (R.C. 1981).

In this proceeding, the Regional Commissioner saw these two separate applications of "temporary" but did not clearly express them. His

use of the phrases "temporary nature of services" and "services needed

only on a temporary basis" are not correct in this context. The requirement that a job-or occupation be of a temporary nature relates to the

statutory requirement fox the "11-2" temporary nonimmigrant worker

section 101(a)(15)(H)(ii) and not to sections 101(a)(15)(H)(i) or (L). The

Regional Commissioner also improperly cited Hess v. Esperdy, 234 F.

Stipp. 909 (S.D.N.Y. 1964). That decision again relates to the "11 2"

temporary worker claisification and not to the intra-company transferee (L-1). The issues which must be satisfied in the present proceeding are not the intent of the beneficiary nor whether the occupational

position requires services of a temporary nature. The issue is whether

or not the petitioner will employ the beneficiary for a limited period of

time. It is irrelevant to the "L-1" classification whether the occupation

is temporary or permanent, so long as the alien beneficiary will only be

utilized for a temporary period.

The Regional Commissioner has raised a valid question in the instance

of a corporate enterprise which is essentially owned by the alien beneficiary who is engaged as the principal manager or executive: Does the

petitioner an,d corporate entity intend to employ the beneficiary permanently in the position for which it is petitioning? I do not agree with the

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Regional Commissioner that this question must be answered in the

affirmative to the effect that the permanent presence and employment

of a principal stockholder and beneficiary is automatically indicated in

all cases. Nonetheless, the question must be asked and the petitioner

must be given an opportunity to establish whether it is the petitioner's

intention to employ the beneficiary for only a temporary period in the

United States. Although the intentions of the alien beneficiary and of

the company's stockholder appear to merge in this situation, the legal

fiction of corporate identity separate from the stockholders must be

maintained.

The petitioner, through counsel, was requested to furnish evidence

and information concerning whether or not the beneficiary will be

employed temporarily. The specific information sought included the

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following:

(1) a description of the petitioner's/beneficiary's other business activities and/or invest-

ments, if any; (2) the petitioner's statement concerning how long the beneficiary's

services will be required in the United States; (3) what provisions, if any, have been

made to operate the business when the beneficiary returns abroad; and (4) whether or

not the Bis-Shaefer Corporation plans• to permanently or indefinitely operate in the

United States.

The petitioner's reply, through counsel, reaffirmed that the petitioner

intended to employ the beneficiary temporarily but provided few

specifics. No information is available here as to whether or not the

overseas affiliates will continue in operation and whether or not these

activities will cause the beneficiary to travel abroad. Counsel states

that, "It is impossible to have any provisions to operate the business

when the beneficiary returns abroad." Counsel also states that if the

company is successful, "it will operate indefinitely."

Because of the indefinite character of the business which requires

careful corporate planning of long-term contingencies, the fadt that the

operation and, indeed, (.he very esistenm of the business depends upon

the presence of the ownerloperator/stockholder, and the fact that no

evidence or information has been offered to show that the employment

will be of limited duration, I must conclude that the petitioner has failed

to establish that it is seeking L-1 nonimmigrant classification to enable

the beneficiary to enter the United States temporarily to perform the

specified services.

This finding, however, should not be construed as prohibiting a corporation owned wholly or primarily by one individual from bringing to the

United States the owner/operator under the "L-l" visa classification. .

This can be accomplished if the petitioner demonstrates its intention to

employ the beneficiary temporarily and can show that the temporary

services of the owner/operator will no longer be utilized at some future

date. It can be further evidenced by demonstrating that the operating

company will exist only for a finite period in the United States or that

the owner's/operator's investments and enterprises abroad are such

in an likelihood he will not be employed and present in the United States

for indefinite periods of time, but will return to manage the other

investments.

While the Service has generally accepted that the burden of proving

the temporary utilization of a beneficiary's services is met through a

simple statement of the facts and listing of dates, the circumstances

involved in a petition for an owner/operator require a greater degree of

proof beyond a mere on-record statement. The form of this proof is the

responsibility of the petitioner. However, it is suggested that evidence

establishing a record of corporate transfers, relocation of high level

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personnel, or anticipated future events which will affect the reassign364

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went of the owner/operator outside of the United States, will normally

meet the petitioner's burden of proof.

ORDER The petition is denied.

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