dismissed L-1A Case: Retail

U.S. Department of Homeland Security 
20 Massachusetts Ave., N.W., Rm. A3042 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
Services 
File: SRC 04 179 50232 Office: TEXAS SERVICE CENTER Date: NOV 2 8 2005 
Petition: Petition for a Nonimmigrant Worker Pursuant to Section 10 1 (a)(15)(L) of the Immigration 
and Nationality Act, 8 U.S.C. $ 1101(a)(15)(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. 
i administrative Appeals Office 
F' 
f I 
SRC 04 179 50232 
Page 2 
DISCUSSION: The Director, Texas Service Center, denied the petition for a nonimmigrant visa. The matter 
is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. 
The petitioner filed this nonimmigrant petition seelang to employ the beneficiary as an L-1A nonimrnigrant 
intracompany transferee pursuant to section 101(a)(15)(L) of the Immigration and Nationality Act (the Act), 8 
U.S.C. 5 1101(a)(15)(L). The petitioner was incorporated under the laws of the State of Texas and claims to 
be engaged in the retail, wholesale and supply of consumer goods. The petitioner claims that it is the 
subsidiary of located in Karachi, Palastan. The petitioner seeks to employ the beneficiary as 
its general manager for a three-year period. 
The director denied the petition concluding that the petitioner did not establish that the beneficiary had at least 
one continuous year of full-time employment with a qualifying entity abroad during the three-year period 
preceding the filing of the petition. The director observed that the beneficiary had been in the United States in 
F-2 nonimmigrant status for approximately 25 months during the three years preceding the filing of the 
petition on June 15,2004, and therefore could not have completed one year of qualifying employment abroad. 
The petitioner subsequently filed an appeal. The director declined to treat the appeal as a motion and 
forwarded the appeal to the MO for review. On appeal, counsel for the petitioner acknowledges that the 
beneficiary was in the United States for a total of 25 months in F-2 nonimmigrant status. However, counsel 
asserts that during this time, the U.S. company has been training the beneficiary for her future appointment as 
the petitioner's general manager. Counsel further states that the foreign entity has kept the beneficiary on its 
payroll during her periods of stay in the United States. Relying on Matter of Continental Gvain Co., 14 I&N 
Dec. 140 (D.D. 1972), counsel contends that the beneficiary's training period should be counted towards 
fulfilling her one year of employment abroad. Counsel submits a brief in support of the appeal. 
To establish eligibility for the L-1 nonimmigrant visa classification, the petitioner must meet the criteria 
outlined in section 10l(a)(l5)(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. 5 214.2(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 (I)(l)(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. 
SRC 04 179 50232 
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(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. 
(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 himher 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 issue in this matter is whether the beneficiary was employed continuously with a qualifying organization 
abroad for one year within the three years preceding the filing of the petition. 
The regulation at 8 C.F.R. 8 214.2(1)(l)(ii)(A) defines "intracompany transferee" 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 subsidiavy thereof 
and brief trips to the United States for business or pleasure shall not be interruptive of the 
one year of continuous employment abvoad but such periods shall not be counted toward 
fulJillment of that requirement. 
(Emphasis added). 
The 1-129 Petition was submitted on June 15, 2004. The petitioner indicated on Fonn 1-129 that the 
beneficiary was last admitted on March 15, 2003 and was in the United States in F-2 status at the time of 
filing. The petitioner indicated that the beneficiary was employed with the foreign entity from "1999 till 
Present." In a supporting letter dated May 18, 2004, the petitioner stated: "[The beneficiary] is currently the 
General ManagerIAdministrator of our parent organization in Karachi, Pakistan." The petitioner also 
submitted a partial copy of the beneficiary's passport, which includes an F-2 visa stamp issued at the U.S. 
Consulate in Islamabad on September 19, 2000, and a page with two U.S. admission stamps dated January 28, 
2002 and March 15,2003. 
On June 23, 2004, the director instructed the petitioner to submit evidence of a valid nonirnmigrant status for 
the principal F-1 student, such as a new Form 1-20 or valid employment authorization document. In response, 
the petitioner submitted two Forms 1-20> Certificate of Eligibility for Nonirnmigrant (F-1) Student Status, for 
the beneficiary's spouse. One Form 1-20 shows the principal student's initial entry to the United States in 
August 1995, and the second Form 1-20 authorized the F-1 student's transfer to a different school in October 
2002. The beneficiary is identified as a dependent spouse on both Forms 1-20. 
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The director denied the petition on August 18, 2004 concluding that the petitioner had not established that the 
beneficiary was employed abroad for the required continuous one-year period within the three years 
preceding the filing of the petition on June 15,2004. The director noted that the beneficiary was in the United 
States from January 28, 2002 to November 28, 2002, and from March 15, 2003 until the present, and 
therefore could have been employed abroad for no more than 11 months since June 15,2001. 
On appeal, counsel acknowledges that the beneficiary has been in the United States for 25 months out of the 
36 months immediately preceding the filing of the petition. However, counsel asserts that during her periods 
of stay in the United States in F-2 status, the beneficiary has received training from the petitioner in 
preparation for her future appointment as general manager of the U.S. company. Counsel cites Matter of 
Continental Grain Co., 14 I&N Dec. 140 (D.D. 1972) to stand for the proposition that periods spent in 
training in the United States should be counted towards the one year of qualifying employment abroad 
requirement. Finally, counsel contends that the beneficiary has received her salary from the foreign entity 
"during all her time of physical presence in the United States." 
Upon review, counsel's assertions are not persuasive. A determination as to whether the beneficiary was 
employed by the foreign entity on a full-time continuous basis for at least one year in the three years 
preceding the filing of this petition rests on two separate issues. First, the AAO must weigh counsel's claim 
that the beneficiary's F-2 "training period" in the United States can be counted towards the fulfillment of her 
one-year of qualifying period abroad requirement. Second, the AAO must determine if the beneficiary's 
periods of stay in F-2 status are interruptive of her continuous employment pursuant to the definition of 
"intracompany transferee" at 8 C.F.R. 8 214.2(1)(l)(ii)(A). 
Counsel's expansive interpretation of 8 C.F.R. 8 214.2(1)(l)(ii)(A) is not supported by the statute, precedent 
decisions, or Citizenship and Immigration Services (CIS) policy. The AAO notes that counsel has 
misinterpreted the director's findings in Mattev of Continental Grain Co. Counsel incorrectly states that the 
Matter of Continental Gvain Co. decision permits beneficiaries to count periods spent in the United States 
toward fulfilling the one year of continuous employment abroad requirement. In Matter of Continental Grain, 
the beneficiary had worked for a foreign entity continuously for a one-year period, spent 28 months in the 
United States receiving training in the United States pursuant to section lOl(a)(lS)(H)(iii) of the Act, and had 
then returned to the foreign entity for an additional seven months immediately prior to submission of the L-1 
petition. The issue was whether the period of time the beneficiary spent in the United States prohibited a 
finding that he was employed by the foreign entity within the one-year period immediately preceding the 
filing of the petition, as was required under section 101(a)(15)(L) of the Act (1970). The director concluded: 
"The beneficiary's period of training within the United States . . .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)." Contrary to counsel's assertions, there is no precedent 
for allowing a period of training in the United States to count towards fulfilling a beneficiary's one year of 
qualifying employment abroad. 
Pursuant to 8 C.F.R. fj 214.2(1)(l)(ii)(A) periods spent in the United States in a 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 
SRC 04 179 50232 
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not be counted toward fulfillment of that requirement. Accordingly, the AAO must consider whether an alien 
admitted in F-2 status as the spouse of an F-1 nonimmigrant student can undertake a vocational training 
program and be considered to be "in a lawful status" with a qualifying organization, for the purpose of 
maintaining "continuous employment abroad." 
Again, the facts of this case can be distinguished from Matter of Continental Grain Co. The beneficiary in 
Matter of Continental Gvain Co. was lawfully admitted to the United States as a nonimmigrant trainee for the 
specific purpose of undergoing training with the U.S. company pursuant to section lOl(a)(l5)(h)(iii) of the 
Act. The beneficiary in this case was admitted to the United States as the spouse of an F-1 nonimmigrant 
student pursuant to 8 C.F.R. $ 214.2(f)(3). The regulations at 8 C.F.R. $5 214.2(f)(15)(i) and (ii) expressly 
prohibit an F-2 nonimmigrant from accepting employment or engaging in full-time study other than 
avocational or recreational study. If the beneficiary was engaged in paid, full-time vocational training for a 
25-month period while in F-2 status, CIS would not deem her period of stay in the United States to be a 
"period spent in the United States in a lawful status for the same employer or a parent, affiliate or subsidiary 
thereof." Accordingly, the beneficiary's periods of stay in F-2 status must be considered interruptive of her 
qualifying employment abroad, and the petitioner has not established that she was employed for one 
continuous year with the foreign entity in the three years preceding the filing of the petition. 
Furthermore, the AAO notes that the petitioner has submitted no evidence to establish that the beneficiary 
actually received "training7' in the United States and in fact never mentioned the beneficiary's participation in 
a training program prior to counsel's assertions on appeal. Without documentary evidence to support the 
claim, the assertions of counsel will not satisfy the petitioner's burden of proof. The unsupported assertions of 
counsel do not constitute evidence. Matter of Obaigbena, 19 I&N Dec. 533, 534 (BIA 1988); Matter of 
Laureano, 19 I&N Dec. 1 (BIA 1983); Matter of Ramirez-Sanchez, 17 I&N Dec. 503, 506 (BIA 1980). A 
petitioner may not make material changes to a petition in an effort to make a deficient petition conform to CIS 
requirements. See Matter of Izummi, 22 I&N Dec. 169, 176 (Assoc. Comm. 1998). The petitioner initially 
claimed that the beneficiary was an experienced employee who was prepared to serve as general manager of 
the U.S. company based on her more than four years of experience as general manager/administrator for the 
foreign entity. Neither counsel nor the petitioner have clarified why the beneficiary would require more than 
two years of training with the petitioner to undertake the position of general manager in the United States or 
why such training requirements were not mentioned at the time the petition was filed. 
The AAO also notes that the record contains no payroll records to support counsel's assertion that the 
beneficiary has continued to receive her salary from the foreign entity during her periods of stay in the United 
States. Again, going on record without supporting documentary evidence is not sufficient for purposes of 
meeting the burden of proof in these proceedings. Matter of Soffici, 22 I&N Dec. 158, 165 (Comm. 1998) 
(citing Matter of Treasure Craft of Califonzia, 14 I&N Dec. 190 (Reg. Comm. 1972)). 
Based on the foregoing discussion, the beneficiary was not employed abroad continuously for one year by a 
qualifLing organization within the three years preceding the filing of this petition. Thus, she does not meet 
the criteria for classification as an intracompany transferee pursuant to 8 C.F.R. 5 214.2(1)(l)(ii)(A). For this 
reason, the appeal will be dismissed. 
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In visa petition proceedings, the burden of proving eligibility for the benefit sought remains entirely with the 
petitioner. Section 291 of the Act, 8 U.S.C. $ 1361. The petitioner has not met this burden. 
ORDER: The appeal is dismissed.