dismissed L-1A Case: Dentistry

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U.S. Department of Homeland Security
20 Massachusetts Ave., N.W., Rm. A3000
Washington, DC 20529
u.s.Citizenship
and Immigration
Services
File: WAC 0521751399 Office: CALIFORNIA SERVICE CENTER Date: ~UG 0 61.001
IN RE: Petitioner:
Beneficiary:
Petition: Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(15)(L) of the Immigration
and Nationality Act, 8 U.S.C. § 1101(a)(l5)(L)
IN BEHALF OF PETITIONER:
INSTRUCTIONS:
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to
the office that originally decided your case. Any further inquiry must be made to that office.
~~Robe - . lemann, Chief
Administrative Appeals Office
www.uscis.gov
WAC 0521751399
Page 2
DISCUSSION: The Director, California Service Center, denied the petition for a nonimmigrant visa. The
matter is now before the Administrative Appeals Office (AAO) on appeal. The AAO will dismiss the appeal.
The petitioner filed this nonimmigrant visa petition seeking to extend the employment of its clinic
administrator as an L-1A nonimmigrant intracompany transferee pursuant to section 101(a)(15)(L) of the
Immigration and Nationality Act (the Act), 8 U.S.C. § l101(a)(15)(L). The petitioner is a sole proprietorship
located in the State of California and is allegedly a dental practice. The petitioner claims a qualifying
relationship with _,the owner of the petitioner, doing business as "American Dental Clinic" in
Santiago, Chile.
The director denied the petition concluding that the petitioner did not establish that the foreign employer is a
"qualifying organization" because the petitioner failed to establish that the foreign employer is currently
"doing business."
The petitioner subsequently filed an appeal. The director declined to treat the appeal as a motion and
forwarded the appeal to the AAO for review. On appeal, the petitioner asserts that the record contains
documentation that the foreign employer has been providing consulting services and is thus doing business.'
To establish eligibility for the L-1 nonimmigrant visa classification, the petitioner must meet the criteria
outlined in section 101(a)(15)(L) of the Act. Specifically, a qualifying organization must have employed the
beneficiary in a qualifying managerial or executive capacity, or in a specialized knowledge capacity, for one
continuous year within three years preceding the beneficiary's application for admission into the United
States. In addition, the beneficiary must seek to enter the United States temporarily to continue rendering his
or her services to the same employer or a subsidiary or affiliate thereof in a managerial, executive, or
specialized knowledge capacity.
The regulation at 8 C.F.R. § 214.2(1)(3) states that an individual petition filed on Form 1-129 shall be
accompanied by:
(i) Evidence that the petitioner and the organization which employed or will employ the
alien are qualifying organizations as defined in paragraph (1)(1)(ii)(G) of this section.
(ii) Evidence that the alien will be employed in an executive, managerial, or specialized
knowledge capacity, including a detailed description of the services to be performed.
(iii) Evidence that the alien has at least one continuous year of full time employment
abroad with a qualifying organization within the three years preceding the filing of
the petition.
'n is noted that, on December 19, 2006, counsel to the petitioner confirmed by facsimile that no brief or
evidence in addition to what was attached to the Form 1-290B was submitted to the AAO, even though she
indicated her intent to file a brief or additional evidence within 30 days on the Form 1-290B. Therefore, the
record shall be considered complete.
WAC 05 217 51399
Page 3
(iv) Evidence that the alien's prior year of employment abroad was in a position that was
managerial, executive or involved specialized knowledge and that the alien's prior
education, training, and employment qualifies him/her to perform the intended
services in the United States; however, the work in the United States need not be the
same work which the alien performed abroad.
The primary issue in the present matter is whether the foreign entity is a "qualifying organization." 8 C.F.R. §
214.2(l)(3)(i).
Title 8 C.F.R. § 214.2(l)(l)(ii)(G) defines a "qualifying organization" as a firm, corporation, or other legal
entity which "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" and "is or will be doing business." "Doing
business" is defined as "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." 8 C.F.R. § 214.2(iXI)(ii)(H).
The petitioner alleges that the foreign employer is "_, d/b/a American Dental Clinic" having an
address of "Tabancura 1091, Of. 225, Vaticura, Santiago, Chile." The record indicates tha_ is also the
sole owner of the petitioner which is apparently a sole proprietorship. While the petitioner asserts that it and the
foreign employer do not have "the same qualifying relationship as they did during the one-year period of the
alien's employment with the company abroad," the petitioner does not attach a statement explaining this averment
as required by the instructions to the Form 1-129.
On September 14, 2005, the director requested additional evidence. The director requested, inter alia,
evidence establishing that the foreign employer is doing business.
In response, counsel to the petitioner provided evidence th~ is certified to practice dental surgery
in Chile; Chilean tax documentation for an entity called _ Y Compania Limitada;" a letter from a
Chilean accountant describin~ Y Compania Limitada as a limited liability company and indicating
that he provides services to this company in Chile; and a letter from a Chilean lawyer indicating that she
represents ) in Chile. The Chilean attorney makes references to _s"asset holdings" in
Chile.
On December 19, 2005, the director denied the petition. The director denied the petition concluding that the
petitioner did not establish that the foreign employer is a "qualifying organization" because the petitioner
failed to establish that the foreign employer is currently "doing business."
On appeal, the petitioner asserts that the record contains documentation that the foreign employer has been
providing consulting services and is thus "doing business."
Upon review, the petitioner's assertions are not persuasive.
As a threshold matter, it must be noted that the foreign employer of the beneficiary, d/b/a
American Dental Clinic, appears to be, or to have been, a sole proprietorship. However, in response to the
WAC 0521751399
Page 4
Request for Evidence, the petitioner provided copies of tax documents regarding a Chilean company, _
Y Compania Limitada. While the petitioner does indicate in the Form 1-129 that it and the foreign e~
do not have the same qualifying re~ they did when the beneficiary worked abroad, the petitioner
offers no evidence establishing that_ owns or controls the Chilean limited liability company or that
~foreign employer has ceased doing business. Absent evidence connecting this organization with
_ISownership and control, and absent any explanation as to the current status of the original foreign
employer, I Y Compania Limitada's tax and business records are irrelevant to these proceedings.
Regardless, even assuming tha_ Y Compania Limitada is owned and controlled by _or that
the documents provided by the petitioner in response to the Request for Evidence are applicable to Dr.
_sbusiness interests in Chile, the petitioner has not established that_, or an entity owned or
controlled by _ is engaged in "the regular, systematic, and continuous provision of goods and/or
services" abroad. As indicat etitioner has provided letters and tax documents concerning Salcedo
Y Com ania Limitada and assets in Chile. None of these documents establishes that Dr.
or a business entity owned and controlled by him, is "doing business." These documents indicate
that is licensed to perform dental surgery, that he and/or a business entity has filed tax returns,
and that he has a relationship with a Chilean lawyer. There is no evidence regarding the provi~
good or service in a regular, systematic, and continuous fashion. Rather, it appears that, at most, _
has a presence in Chile in the form of assets and professional contacts. This is not sufficient under the
regulations.
Accordingly, the petitioner has failed to establish that the foreign entity is a "qualifying organization" because
it has failed to establish that the foreign entity is "doing business," and the petition may not be approved for
that reason. 8 C.F.R. § 214.2(l)(3)(i).
Beyond the decision of the director, the petitioner has also failed to establish that the beneficiary was
employed full-time abroad for at least one continuous year with a qualifying organization within the three
years preceding the filing of the instant petition. 8 C.F.R. § 214.2(l)(3)(iii). As indicated above, the
petitioner has failed to establish that the foreign employer is, or has been, a qualifying organization.
Consequently, the petitioner has also failed to establish that the beneficiary was ever employed by a
qualifying organization.
The initial approval of an L-IA petition does not preclude Citizenship and Immigration Services (CIS) from
denying an extension of the visa based on a reassessment of petitioner's qualifications. See Texas A&M Univ.,
99 Fed. Appx. 556, 2004 WL 1240482 (5th Cir. 2004). Despite any number of previously approved petitions,
CIS does not have any authority to confer an immigration benefit when the petitioner fails to meet its burden
of proof in a subsequent petition. See section 291 of the Act, 8 U.S.C. § 1361.
An application or petition that fails to comply with the technical requirements of the law may be denied by
the AAO even if the Service Center does not identify all of the grounds for denial in the initial decision. See
Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 2001), affd, 345 F.3d 683
(9th Cir. 2003); see also Dar v. INS, 891 F.2d 997, 1002 n. 9 (2d Cir. 1989) (noting that the AAO reviews
appeals on a de novo basis).
WAC 05 217 51399
Page 5
The petition will be denied for the above stated reasons, with each considered as an independent and
alternative basis for denial. When the AAO denies a petition on multiple alternative grounds, a plaintiff can
succeed on a challenge only if it is shown that the AAO abused its discretion with respect to all of the AAO's
enumerated grounds. See Spencer Enterprises, Inc., 229 F. Supp. 2d at 1043.
In visa petition proceedings, the burden of proving eligibility for the benefit sought remains entirely with the
petitioner. Section 291 of the Act. Here, that burden has not been met. Accordingly, the appeal will be
dismissed.
ORDER: The appeal is dismissed.