dismissed L-1A Case: Restaurant

U.S. Citizenship 
and Immigration 
Services 
MATTER OF S-8-S-H- LLC 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: NOV. 8, 2018 
APPEAL OF CALIFORNIA SERVICE CENTER DECISION 
PETITION: FORM 1-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a Brazilian restaurant, seeks to temporarily employ the Beneficiary as its chief 
executive officer under the L-lA nonimmigrant classification for intracompany transferees. See 
Immigration and Nationality Act (the Act) section 101(a)(l5)(L), 8 U.S.C. § 1101(a)(15}(L). The L-IA 
classification allows a corporation or other legal entity (including its aftiliate or subsidiary) to transfer a 
qualifying foreign employee to the United States to work temporarily in a managerial or executive 
capacity. 
The Director of the California Service Center denied the petition concluding that the Petitioner did 
not. establish, as required, that the Beneficiary: (1) was employed abroad in a managerial or 
executive capacity; (2) would be employed in the United States in a managerial or executive 
capacity; and (3) had at least one continuous year of full-time employment abroad with a qualifying 
o~ganization within the three years preceding the filing of the petition. 
On appeal, the Petitioner disputes the three grounds for denial, contending that the Beneficiary met 
all eligibility requirements. The Petitioner asserts that the Director erred by disregarding evidence 
that demonstrates the Beneficiary's continued employment for the foreign entity, despite his 
presence in the United States. 
Upon de novo review, we will dismiss the appeal because the Petitioner has not established that the 
Beneficiary was employed for the requisite one-year period within the three years prior to filing this 
petition. As this is a fundamental element of eligibility and the Petitioner has not satisfied this 
element, we will reserve the two remaining issues. 
I. LEGAL FRAMEWORK 
To establish eligibility for the L-1 A nonimmigrant visa classification, a qualifying organization must 
have employed the beneficiary "in a capacity that is managerial, executive, or involves specialized 
knowledge," for one continuous year within three years preceding the beneficiary's application for 
admission into the United States. Section 10I(a)(l5)(L) of the Act. 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 or executive capacity. Id. The 
Matter of S-B-S-H- LLC 
petitioner must also establish that the beneficiary's prior education, trammg, and employment 
qualify him or her to perform the intended services in the United States. 8 C.F.R. § 214.2(1)(3). 
According to the regulations, a beneficiary must have "one continuous year of full-time employment 
abroad with a qualifying organization within the three years preceding the filing of the petition." 
8 C.F.R. § 214.2(1)(3)(iii). 
The term "intracompany transferee" is defined as: 
An alien who, within three years preceding the time of his or her application for 
admission into the United States, has been employed abroad continuously for one 
year by a firm or corporation or other legal entity or parent, branch, affiliate or 
subsidiary thereof, and who seeks to enter the United States temporarily in order to 
render his or her services to a branch of the same employer or a parent, affiliate, or 
subsidiary thereof in a capacity that is managerial, executive or involves specialized 
knowledge. Periods spent in the United States in lawful status for a branch of the 
same employer or a parent, affiliate, or subsidiary thereof and brief trips to the 
United States for business or pleasure shall not be interruptive of the one year of 
continuous employment abroad but such periods shall not be counted toward 
fulfillment of that requirement. 
8 C.F.R. § 214.2(1)(1)(ii)(A). 
II. EMPLOYMENT ABROAD 
The primary issue in this proceeding is whether the Petitioner has established that the Beneficiary 
had at least one continuous year of full-time employment abroad with a qualifying organization 
within the three years immediately preceding the filing of the petition. Specifically, the issue is 
whether U.S. Citizenship and Immigration Services (USCIS) should reach over the Beneficiary's 
June 2015 admission to the United States in B-2 status (and subsequent change to F-1 status) in 
determining whether he has been employed abroad for one continuous year within the three years 
preceding the filing of the petition. Based on our review of the record and for the reasons discussed 
below, we find that the Petitioner has not established that the Beneficiary has one year of full-time 
continuous employment with the foreign entity during the relevant three-year period. 
A. Procedural History 
The Petitioner filed the instant Form 1-129 on September 21, 2017. The petition form states that the 
Beneficiary owns both the U.S. and foreign entities and that he has been employed with the affiliate 
in Brazil from August 2008 through the "present." Records show that the Beneficiary entered the 
United States in B-2 nonimmigrant status on June 19, 2015, and remained in that status until May 
18, 2016, when his change of status request was approved to an F-1 nonimmigrant. The Beneficiary 
resided in the United States as a nonimmigrant visitor or student for approximately two years and 
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Matier of S-B-S-H- LLC 
three months before the instant petition was filed. Although the Petitioner submitted foreign payroll 
documents indicating the Beneficiary continued to receive a salary during his absence from the 
Brazilian affiliate starting in June 2015, the Petitioner also provided a supporting cover letter, which 
explained that the foreign entity's "Executive and Operational Director," 
was "entrusted" with managing the foreign entity during the Beneficiary's absence . 
In a request for evidence (RFE), the Director observed that the Beneficiary made several trips to the 
United States "in B2/F2/F 1 status" between the time period of September 2013 and the present. The 
Petitioner was instructed to provide a further explanation and evidence regarding those trips to 
establish that the Beneficiary had one continuous year of full-time employment· abroad in the three 
years preceding the filing of the petition. 
In response, the Petitioner stated that the Beneficiary continued to provide "executive level of 
direction of [the foreign entity] remotely" via telephone and email. It also provided a signed proxy 
in which the Beneficiary granted the authority to manage the foreign entity ' s day-to-day operations 
to three family members. Regarding the Beneficiary's absences, the Petitioner explained that prior 
to his U.S. arrival in June 2015, the Beneficiary's visits were only for brief stays that lasted between 
ten and 25 days . The Petitioner stated that the purpose of the June 2015 visit was a combination of 
tourism and business, claiming that the Beneficiary "initially visited local tourist attractions" and 
later engaged in negotiations to purchase a business in Florida. ·The Petitioner explained 
that after purchasing the Florida business, the Beneficiary sought to change his status to that of an F-
l student so that he could attend a U .S. educational institution to improve his ability to speak, read, 
and write in English. The Petitioner asserted that the Beneficiary's pursuit of educational interests in 
the United States was not interruptive of his foreign employment and pointed to the previously 
submitted paystubs as evidence that the Beneficiary maintained his foreign employment, despite his 
residence in the United States in F-1 status. 
In the denial, the Director determined that the Petitioner had not established that the Beneficiary had 
one year of continuous full-time employment abroad in the three years preceding the filing of the 
petition . Specifically, the Director found that the Beneficiary's extended stay in the United States 
since 2015 was interruptive of his period of continuous foreign employment; therefore, the Director 
did not reach back to the three-year period preceding the Beneficiary's admission as a nonimmigrant 
in June 2015 .1 The Director did not find that the Beneficiary's June 2015 entry to the United States 
as a B-2 nonimmigrant and his subsequent change of status to that of an F- l nonimmigrant was 
equivalent to being in lawful status for the purpose of working for the same employer or a parent, 
affiliate, or subsidiary thereof. 
1 Although the Director referred the Beneficiary" s continuous U.S. presence since February 20 I 5, the records indicate 
that the Beneficiary's U.S. entries in B-2 status prior to June 2015 were for periods that did not exceed 25 days. The 
Beneficiary's continued long-term absence that resulted in the interruption of his foreign employment commenced in 
June 2015. 
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Maller of S-B-S-H- LLC 
On appeal, the Petitioner disputes the denial and asserts that the Beneficiary did not interrupt his 
continuous period of employment with the foreign entity despite remaining in the United States for 
an extended stay, which commenced in "the later part of 2015." The Petitioner points to the 
Beneficiary's paystubs as proof of his continued employment with the foreign entity and further 
contends that the Beneficiary uses the internet and "various forms of technological communications" 
to continue to carry out his responsibilities with the foreign entity. 
B. Analysis 
The statute indicates that the relevant three-year period to be used as a reference point in determining 
whether the beneficiary had one year of continuous full-time employment with a qualifying entity 
abroad is the three years "preceding the time of his application for admission into the United 
States .... " Section 101(a)(15)(L) of the Act. The statute, however, is silent with regard to those 
beneficiaries who have already been admitted to the United States in a different nonimmigrant 
classification. 
The regulation at 8 C.F.R. § 214.2(1)(3) clearly requires that the pet1t10n be accompanied by 
evidence that the beneficiary has been employed for one continuous year in the three year period 
"preceding the filing of the petition" in an executive or managerial capacity. When the definition of 
"intracompany transferee" is construed together with the regulation at 8 C.F.R. § 214.2(1 )(3) and 
section 101(a)(l5}(L) of the Act, the statutory phrase "preceding the time of his application for 
admission into the United States" reters to a beneficiary whose admission or admissions were "for a 
branch of the same employer or a parent, atliliate, or subsidiary thereof' or for "brief trips to the 
United States for business or pleasure." 
In making this determination, we note that there is a clear nexus between the L-1 nonimmigrant 
classification for intracompany transferees and the first preference employment-based immigrant 
classification for multinational executives or managers. In promulgating the regulations on 
203(b )( 1 )(C) of the Act, the former INS commented that "this regulation reflects the statute and 
follows criteria long in place for the adjudication of petitions for nonimmigrant intra-company 
transferees .... " Employment-Based Immigrants, 56 Fed. Reg. 30703, 30705 (July 5, 1971 ). 
Accordingly, it is reasonable to consider the regulations governing similar circumstances in the 
immigrant visa category when contemplating ambiguities in the statutory and regulatory provisions 
that pertain to the nonimmigrant L-1 visa classification. 
In the multinational executive or manager immigrant context, if a beneficiary entered the United 
States to work for a qualifying entity as a nonimmigrant (for example H-1 B or another work­
authorized status), USCIS will reach back three years from the date of his or her admission to 
determine whether he or she had the requisite one year of employment. Matter <?f'S-P-lnc., Adopted 
Decision 2018-01 (AAO Mar. 19, 20 I 8); 8 C.F.R. § 204.5G)(3)(i)(B). However, under the statute 
and regulations that govern the multinational executive or manager immigrant classification, a 
beneficiary who was in B-2 or F-1 status at the time of filing an immigrant petition would not be 
considered to be "working for" a qualifying entity as a nonimmigrant. Therefore, a beneficiary who 
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Matter (lS-B-S-H- LLC 
worked abroad for a qualifying multinational organization for at least one year, but left its employ 
for a period of two years or longer qfier being admitted to the United States as a nonimmigrant, 
cannot be deemed as having worked for the qualifying foreign entity for the requisite one-year 
period and therefore would not satisfy the foreign employment requirement for immigrant 
classification as a multinational manager or executive. Id. 
As noted, this regulation was intended to be consistent with regulations governing prospective L- I 
nonimmigrant intracompany transferees who spend time in the United States after acquiring one year 
of qualifying employment with a foreign entity. For those beneficiaries, periods spent in the United 
States in lawful status for a branch, parent, affiliate, or subsidiary of their foreign employer are not 
interruptive of the beneficiary's qualifying year of foreign employment. See 8 C.F.R. 
§ 214.2(1)( 1 )(ii)(A). In promulgating regulations for the immigrant visa classification, it is evident 
that the former INS interpreted "Periods spent in the United States in lawful status for a branch of 
the same employer or a parent, affiliate, or subsidiary thereof," as periods spent in an authorized 
status "working for" a qualifying entity. · 
Therefore, according to the plain purpose of the Act and regulations, USCIS will not reach back to 
the three year period preceding the Beneficiary's admission as a nonimmigrant in all circumstances. 
Unless the authorized period of stay in the United States is either brief or "for" a qualifying 
employer, the period of stay will be deemed interruptive. See Temporary Alien Workers Seeking 
Classification Under the Immigration and Nationality Act, 52 Fed. Reg. 5738, 5742 (Feb. 26, 1987). 
It logically follows that any non-qualifying period of stay in the United States that is longer than two 
years would prevent a beneficiary from meeting the "one-in-three" requirement at 8 C.F.R. 
§ 214.2(1)(3)(iii). 
The Beneficiary in this case had been in the United States for well over two years at the time the 
petition was filed. Therefore, the question before us is whether the Beneficiary's successive stays in 
B-2 and F-1 status may constitute an authorized stay ''./<Jr a branch of the same employer or a parent, 
affiliate, or subsidiary thereof." We find that the Beneficiary's over two-year stay in the United 
States was not for the purpose of employment that was authorized and sponsored by a qualifying 
organization. 
To clarify, it is not the Beneficiary's individual stays in B-2 or F-1 ·status that severed eligibility for 
this visa classification, but rather the combined length ·of his continuous stays in those statuses that 
interrupted the Beneficiary's continuity of employment. Had the Petitioner filed the Form 1-129 
~efore the Beneficiary had been in the United States for a continuous period of over two years, it 
could have met the one year of continuous employment abroad requirement. However, by the time 
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Maller qf S-B-S-H- LLC 
this petition was filed, more than two years had passed since the Beneficiary's employment with the 
foreign entity had ceased.2 
Ill. CONCLUSION 
For the reasons discussed above, we consider the Beneficiary's cumulative period of stay, first as a 
B-2 nonimmigrant visitor and then as an F-1 nonimmigrant student from June 2015 to September 
2017, to be interruptive and we will not reach back to the three-year period preceding his June 2015 
admission in B-2 status. The Petitioner did not establish that the Beneficiary had one year of full­
time continuous employment with a qualifying entity abroad in the three years preceding the filing 
of the petition. 
ORDER: The appeal is dismissed. 
Cite as Maller ofS-B-S-H- LLC, ID# 1669011 (AAO Nov. 8, 2018) 
2 We note that the fact that the foreign entity continued to pay the Beneficiary while he was in the United States does not 
establish his continuous employment with the same multinational organization. Cf Mauer of S-P-, Adopted Decision 
2018-0 I. Any such compensation is irrelevant for the purpose of establishing his continuous employment abroad, given 
that the Beneficiary was not physically present abroad nor was he working in the United States for a qualifying entity 
when he received such compensation. We further point to the Beneficiary's execution of a proxy'in which he granted his 
authority over the foreign entity's financial and business matters to three family members. The existence of this 
document further detracts from the Petitioner·s claim that the Beneficiary continued to work for the foreign entity while 
he resided in the United States from June 2015 through the date this petition was filed. 
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