remanded L-1A Case: Unknown

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U.S.])epartment of HomelandSecurlty
20 Massachusetts Avenue NW, Rm. A3000
Washington, DC 20529
u.s.Citizenship
and Immigration
Services
File: EAC 05 17353861 Office: VERMONT SERVICE CENTER Date:
\) 1
MAR 0 ~ 2007
INRE: 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. § 1l01(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.
~,C7--'
Robert P. Wiemann, Chief
Administrative Appeals Office
\
www.uscis.gov
EAC 05 173 53861
Page 2
DISCUSSION: The Director, Vermont Service Center, denied the petition for a nonimmigrant visa. The
matter is now before the Administrative Appeals Office (AAO) on appeal. The decision of the director will
be withdrawn and the matter remanded to the service center for additional action and a new decision.
The petitioner seeks to change the beneficiary's classification from specialized knowledge worker (L-lB) to
manager or executive (L-IA) and extend his period of stay as a nonimmigrant intracompany transferee
pursuant to § 101(a)(15)(L) of the Immigration and Nationality Act, 8 U.S.c. 1101(a)(l5)(L). The
beneficiary was issued an L-l nonimmigrant visa on June 6, 2000, and first entered the United States in L-l
status on June 10, 2000, under an approved blanket petition (EAC 00 029 52411) as an intracompany
transferee having specialized knowledge. The beneficiary's current L-l classification as a specialized
knowledge worker (L-IB) expired on June 5, 2005 (EAC 03 163 52478). The petitioner filed the instant
petition seeking the change of status and extension of stay on May 31, 2005, or 5 days before the expiration of
the petition's validity. The petitioner identified the beneficiary's intended period of employment in the Form
1-129 as June 6, 2005 until June 5, 2007. The director concluded that because the petitioner did not file the
petition at least six months prior to the expiration of the beneficiary's stay as an L-IB nonimmigrant, the
petitioner had not filed timely and denied the petition to change classification to L-IA status, and the
application for an extension of stay, pursuant to 8 C.F.R. § 214.2(l)(15)(ii).
On appeal, counsel to the petitioner asserts that the petitioner was excused in this case from filing an
amended, new, or extended petition within six months of the expiration of the beneficiary's L-IB five-year
period of stay because the petitioner can establish that the beneficiary has been employed as a manager since
first entering the United States in L-I status and that the petition is based on the beneficiary's pre-existing
qualifications and not on a "promotion." Counsel also asserts that the director improperly inferred from the
regulations a requirement that such petitions be filed six months prior to the expiration of the beneficiary's L­
IB status.
The regulation at 8 C.F.R. § 214.2(1)(l5)(ii) states the following, in pertinent part:
The total period of stay may not exceed five years for aliens employed in a specialized
knowledge capacity. The total period of stay for an alien employed in a managerial or
executive capacity may not exceed seven years. No further extensions may be granted.
When an alien was initially admitted to the United States in a specialized knowledge capacity
and is later promoted to a managerial or executive position, he. or she must have been
employed in the managerial or executive position for at least six months to be eligible for the
total period of stay of seven years. The change to managerial or executive capacity must
have been approved by [Citizenship and Immigration Services] in an amended, new, or
extended petition at the time that the change occurred.'
In the denial, the director determined that the beneficiary is not eligible for the total period of stay of seven
years because the petitioner did not file, and Citizenship and Immigration Services (CIS) did not approve, an
amended, new, or extended petition changing the beneficiary's classification to L-I A status within six months
of the expiration of the beneficiary's total permissible period of stay of five years.
EAC 05 17353861
Page 3
It is noted that 8 ·C.F.R. § 214.1(c)(5) states that there is no appeal from the denial of an application for
extension of stay, whether filed on a Form 1-129 or Form 1-539. However ; while the AAO may not normally
enter a decision on the appeal of the beneficiary's extension of stay, the AAO will review the matter 'as it
pertains to the underlying L-IA petition and change of status request that were not addressed by the director ,
which are a proper bases for the appeal. I .
As noted above, the beneficiary was issued an L-l nonimmigrant visa on June 6, 2000, and first entered the
United States in L-l status on June 10, 2000, under an approved ' blanket petition as an intracompany
transferee having specialized knowledge (L-IB). The beneficiary later became a beneficiary of an individual
petition filed by the current petitioner. This individual petition extended the beneficiary's period of stay as a
specialized knowledge worker (L-IB) until JuneS, 2005 '(EAC 03 16352478). Due to absences from the
United States during his employment as an L-l nonimmigrant, and due to his initial admission to the country
on June 10,2000, the petitioner could have potentially extended the beneficiary's stay until August 15,2005 ,
or for 71 days subsequent to June 5, 2005, the expiration of the current petition extension, before the '
beneficiary would have reached his five-year period of stay limitation/
'The AAO notes that an "e xtension of stay" must be distinguished from either an extension of status, which
. occurs through a "petition extension ," or from a petition for new employment , which requests a new
.classification and/or term of employment. Although those seeking L-IA status or an extension of this status
are currently permitted to file one form to request this new or extended classification , to request"an extension
of stay, and to request a change of status to this classification, these requests are still separate determinations.
See 56 Fed. Reg. 61201, 61204 (Dec. 2, 1991). In addition, 8 C.F.R. § 214 .2(1)(15)(i) specifically states that ,
"[e]ven though the requests to extend the visa petition and the alien's stay are combined on the petition, the
director shall make a separate determination on each ." Thus, 8 C.F.R. §§ 214.1(c) and 214.2(1)(15)are the
relevant sections on extension of stay requests, 8 C.F.R. § 214.2(1)(14) deals only with L-l petition
extensions, and 8 C.F.R . § 248.3(a) addresses change of status requests to L-IA classification.
In this matter , the petitioner makes the following separate requests : (1) the approval of L-l A classification for
the beneficiary, (2) a change of status from L-IB to L-IA classification, and (3) the extension of the
beneficiary's authorized stay in the United States. Only in situations where a beneficiary has or will have
exhausted his or her permitted stay in the United .States in H or L status by the requested start date or at the
time of filing, whiche ver is later, may the director deny a petition based solely on a beneficiary's ineligibility
for an extension of stay. See 8 C.F.R. § 214.2(1)(12)(i). Otherwise, as discussed supra, the director must
make separate determinations on each request made in the Form 1-129.
2As documented in the record, the beneficiary was absent from the United States from August 25, 2001 until
. September 20, 2001; from October 20, 2002 until November 5, 2002; and from February 15, 2003 until
March 11, 2003. When these absences are considered in conjunction with the beneficiary's .initial admiss ion
to the United States i~ L-lstatus (June 10, 2000) and the expiration 'of the current extended petition (June 5,
2005) , the petitioner could have potentially extended the beneficiary's stay for 71 days .
EAC 05 173 53861
Page 4 .
However, the director concluded that because the petitioner did not file the petition at least six months prior to
the expiration of the beneficiary's stay as an L-lB nonimmigrant (June 5, 2005) , the petitioner had not filed
timely and denied the petition to change status to L-lA classification, and the application for an extension of
stay, pursuant to 8 C .F.R. § 2 l4.2(l)(15)(ii). The director ignored the fact that the petition was filed five days
before the expiration of the current petition on June 5 , 2005; that the petitioner was potentially able to extend
the beneficiary's stay for 71 days beyond June 5 , 2005; and that the petitioner was potent ially able to change
the beneficiary's classification to L-lA status for the five days remaining in the validity period of the current
petition plus the 71 day period subsequent to the expiration of the validity of the current petition, i.e. , until
August 15,2005.
Upon review, the AAO partly concurs with counsel's contention that the regulations do not mandate that a
petition seeking to change a beneficiary's classification from L-IB to L-IA be filed six months prior to the
expiration of the beneficiary's period of stay. The director denied the petitioner's application for extension of
stay in this matter due to its reliance on the visa validity dates and the filing date of the petition . The director
.did not, however, address the petitioner 's separate'and distinct requests to approve L-lA classification for the
beneficiary and to change his current L-lB status in the United States to this new classification . The director
merely noted that the simultaneous extension request was filed le ss than six months prior to the expiration of
the validity period , and thus precluded the granting of an extension. The director fa iled, however, to evaluate
the merits of the petitioner 's request to amend the beneficiary 's status, and failed to review the exact dates
during which the beneficiary was in fact present in the United States.'
For this reason, the de cision must be withdrawn and the matter remanded to the service center for additional
action and a new dec ision.
It should be noted that the AAO disagrees w ith the remainder of counsel's arguments regarding the
interpretation of 8 C.F.R. §2 14.2(1)(15)(ii). As explained above, counsel asserts that this regulation should
be construed .to excu~e the petitioner in this case from filing an amended, new, or extended petition
documenting the beneficiary's "change" to managerial duties within six months of the expiration of the
beneficiary's L-IB five-year period of stay because the petitioner can establish that the beneficiary has been
employed as a manager since first entering the United St ates in L-l status and that th e petition is based on the
beneficiary's pre-existing qualifications and not on a "promotion ." In other words , since the beneficiary has
arguably been employed pr imarily as a manager from the beginning , was never "promoted ," and his duties
never "changed," there was nothing to document in an amended petition and , thus, the petitioner is entitled to
3h is noted for the record that , when reviewing the requested extension of stay, the director should calculate
the total time the beneficiary has spent in the United States and , if eligible for the extension, grant it.up until
the maximum five-year per iod permitted by regulation. The beneficiary would then be ineligible for an
extension of stay beyond the fi ve year maximum until he has been employed in the approved managerial or
executive position for at least six months, thereby necessitating a second petition at that time to extend the
beneficiary's stay for the maximum seven years permitted for L-lA nonimmigrants. 8 C.F .R. §
2l4.2(l)(15)(ii). As noted above, in this case it appears that the beneficiary would not have reached his five­
year period of stay until 71 days after June 5 , 2005, or August 15,2005.
EAC 05 173 53861
Page 5
extend the beneficiary's stay for the full seven years provided it can establish that the beneficiary has been
primarily employed as a manager for at least six months and will continue to be so employed. Counsel ,
however, ignores the last sentence of 8 C.F.R. § 214.2(\)(15)(ii):
The change to managerial or executive capacity must have been approved by '[CIS] In an
amended, new, or extended petition 'at the time the change occurred.
This sentence of the regulation clearly mandates the documentation of a beneficiary's change to a managerial
or executive capacity at the time the change occurred and not at some future time, e.g., when the petitioner
decides to extend the stay of a specialized knowledge worker beyond the fifth year. In this case, the petitioner
was obligated to document the beneficiary's alleged change to a managerial capacity when the change
occurred, even if this occurred on his first day of his employment. While counsel asserts in the appeal that
"the beneficiary has been employed as a manager since entering the United States in L-l status," the petitioner
was nevertheless obligated to document his assumption of managerial duties in an amended , new, or extended
petition at least six months before the beneficiary reached the end of his L-l B five-year period of stay if it had
wanted to preserve its opportunity to extend the beneficiary's stay through the seventh year. In this case , as
the petitioner chose not to document the beneficiary 's assumption of managerial duties as required by the
regulations, the regulations prohibit an extension beyond the fifth year even if the beneficiary could be
established to have been performing managerial duties from the beginning of his employment in 2000 .
Counsel's argument is without merit.
Furthermore , although the director did not enter a decision addressing the beneficiary 's alleged change of
status from an L-IB intracompany transferee with specialized knowledge to an L -IA manager or executive ,
the AAO notes that the evidence presently contained in the record appears insufficient to establish that the
beneficiary was employed primarily in a managerial position. The petitioner asserts that the beneficiary has
been managing "professionals," although the record is devoid of any evidence that a bachelor's degree is
actually required for any of the positions supervised by the beneficiary. In evaluating whether the beneficiary
manages professional employees, the AAO must evaluate whether the subordinate positions require a
baccalaureate degree as a minimum for entry into the field of endeavor. Section 101(a)(32) of the Act ,
8 V.S.c. § 1101(a)(32), states that "[tjhe term profession shall include but not be limited to architects,
. engineers , lawyers, physicians , surgeons, and teacher s in elementary or secondary schools , colleges,
academ ies, or seminaries." The term "profession" contemplates knowledge or learning, not merely skill , of an
advanced type in a given field gained by a prolonged course of specialized instruction and study of at least
baccalaureate level, which is a realistic prerequisite to entry into the particular field of endeavor. Matter of
Sea, 19 I&N Dec. 817 (Comm . 1988); Matter ofLing, 13 I&N Dec. 35 (R.c. 1968); Matter of Shin, 11 I&N .
Dec. 686 (D.O. 1966) . Therefore , the AAO must focus on the level of education required by the position ,
rather than the degree held by subordinate employee. The possession of a bachelor's degree by a subordinate
employee does not automatically lead to the conclusion that an emplo yee is employed in a professional
capacity as that term is defined above.
Moreover, the petitioner has provided a vague and nonspecific description of the beneficiary 's duties that fails .
to demonstrate what the beneficiary does on a day-to-day basis. Specifics are clearly an important indication
of whether a beneficiary's duties are primarily executive or managerial in nature; otherwise meeting the
EAC 05 173 53861
Page 6 '
definitions would simply be a matter of reiterating the regulations. Fedin Bros. Co., Ltd. v. Sava, 724 F.
Supp. 1103 (E.D.N.y' 198'9), aff'd, 905 F.2d 41 (2d. Cir. 1990) . Going on record without supporting
documentary evidence is not sufficient for purposes of meeting the burden of proof in these proceedings.
Matter oJTreasure Craft ojCalifornia, 14 I&N Dec. 190 (Reg. Comm, 1972) ~ .
However, as the director failed to address the critical issue of whether the beneficiary has been and will be
employed in a managerial capacity, this matter must be remanded for a full decision.
The decision of the director will be withdrawn and the matter remanded so that the director may examine the
record to determine whether the beneficiary was promoted to a qualifying managerial capacity, and was
thereby eligible for a change of classification and extension of stay until the end ofhis five-year period of
. stay, i.e., August 15,2005 .
ORDER: The decision of the director is .withdrawn. The matter is remanded to the director for
additional action and a new decision.