dismissed L-1B Case: Freight Forwarding

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: MAR. I, 2024 In Re: 30165728 
Appeal of California Service Center Decision 
Form I-129, Petition for a Nonimmigrant Worker (L-lB Specialized Knowledge Worker) 
The Petitioner, a freight forwarding company, seeks to employ the Beneficiary temporarily as an 
import and export analyst under the L-1 B nonimmigrant classification for intracompany transferees. 
See Immigration and Nationality Act (the Act) section 101(a)(15)(L), 8 U.S.C. § 1 I0I(a)(15)(L) . The 
L-lB classification allows a corporation or other legal entity, including its affiliate or subsidiary, to 
transfer a qualifying foreign employee to the United States to work temporarily in a capacity involving 
specialized knowledge . 
The Director of the California Service Center denied the petition , concluding that the record did not 
establish that the Beneficiary had been employed abroad by a qualifying employer for at least one 
continuous year during the three years preceding the filing of the petition. The matter is now before 
us on appeal. 8 C.F.R. § 103.3. 
The Petitioner bears the burden of proof to demonstrate eligibility by a preponderance of the evidence. 
Matter ofChawathe, 25 I&N Dec. 369, 375-76 (AAO 2010). We review the questions in this matter 
de nova. Matter of Christo 's, Inc. , 26 I&N Dec. 537, 537 n.2 (AAO 2015). Upon de nova review, 
we will dismiss the appeal. 
I. LAW 
To establish eligibility for the L-lB nonimmigrant visa classification, 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 specialized knowledge capacity. Section 101(a)(15)(L) of the Act. 
The petitioner must also establish that the beneficiary's prior education, training, and employment 
qualify him or her to perform the intended services in the United States. 8 C.F.R. § 214.2(1)(3). 
II. ANALYSIS 
A petitioner must submit evidence that the beneficiary 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. 8 C.F.R. § 214.2(1)(3)(iii). Brief trips to the United States for business or pleasure shall not 
interrupt 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(l)(l)(ii)(A). 
The Director determined that the Beneficiary had accrued less than the required continuous year of 
employment with the Petitioner's foreign affiliate. We agree, as explained below. 
The Beneficiaiy entered the United States as a B-2 nonimmigrant visitor on November 13, 2022, and 
was still in the United States when the Petitioner filed the petition on May 11, 2023. Therefore, the 
Petitioner must establish the Beneficiary's continuous employment with the Petitioner's foreign 
affiliate for at least one continuous year before the Beneficiary's arrival in the United States on 
November 13, 2022. 
Initially, the Petitioner indicated that the Beneficiaiy's employment abroad began on December 13, 
2021. In June 2023, the Director issued a notice of intent to deny the petition (NOID), infonning the 
Petitioner that government travel records show that the Beneficiary was in the United States for 14 
days in December 2021 and for 43 days in August and September 2022 before his last U.S. entry in 
November 2022. The Director calculated that "the beneficiary was abroad for a total of only 276 days" 
between his December 13, 2021 hiring and his November 13, 2022 entry into the United States. 
In response, the Petitioner asserted that the Beneficiary's travel to the United States did not interrupt 
or break the continuity of his employment abroad, because the trips were work-related. The Petitioner 
also claimed that the Beneficiary actually began working for the foreign entity as a contractor on 
September 15, 2021. 
The Director denied the petition, stating that the Petitioner's new claim contradicted earlier documents 
and statements made under penalty of perjury. The Director also cited statements that the Beneficiary 
made on a nonimmigrant visa application in October 2021, which were consistent with the Petitioner's 
initial claims but not the subsequent revisions. 
On appeal, the Petitioner protests that the Director did not give any prior notice about the information 
in the Beneficiary's nonimmigrant visa application. We agree that the Director should not have 
produced this information for the first time in the denial notice. The regulations require prior notice 
of derogatory information from outside the record: 
If the decision will be adverse to the applicant or petitioner and is based on derogat01y 
information considered by the Service and of which the applicant or petitioner is 
unaware, he/she shall be advised of this fact and offered an opportunity to rebut the 
information and present information in his/her own behalf before the decision is 
rendered .... Any explanation, rebuttal, or infonnation presented by or in behalf of the 
applicant or petitioner shall be included in the record of proceeding. 
8 C.F.R. § 103.2(b)(l6)(i). 
We will disregard the information from the nonimmigrant visa application because the Director did 
not mention that information in the NOID. Nevertheless, even without this information, the record 
supports the Director's decision to deny the petition. 
2 
The originally stated starting date of the Beneficiary's employment abroad, December 13, 2021, was 
less than a year before the Beneficiary's entry into the United States on November 13, 2022. The 
Beneficiary was still in the United States when the Petitioner filed the petition in May 2023. This 
information, by itself, is sufficient to show that the Beneficiary's continuous employment abroad with 
the Petitioner's affiliate lasted less than one year. In the NOID, however, the Director did not mention 
this apparentprimafacie ineligibility, instead citing the Beneficiary's travel history in 2021 and 2022 
and concluding that "the beneficiary was abroad for a total of only 276 days" during his employment 
with the Petitioner's foreign affiliate. 
In response to the NOID, the Petitioner asserted that the Beneficiary's travel to the United States did 
not interrnpt or break the continuity of his employment abroad, because the trips were work-related. 
The Director did not argue otherwise. But the regulations unambiguously state that any time that a 
beneficiary is physically present in the United States "shall not be counted toward folfillment of [the] 
requirement" of one year of continuous employment abroad. 8 C.F.R. § 214.2(1)(1 )(ii)(A). 
The Petitioner also claimed that "a work contract signed in September, 2021" shows that "the 
Beneficiary actually started working for the qualifying foreign employer from September 15th to 
December 12, 2021, as a foll-time temporary professional contractor." The Petitioner contended that 
this newly claimed "additional period can be added to complete the one-year foreign employment 
requirement." The Petitioner also claimed that "at the beginning of September, 2021, the Beneficiary 
was placed under a 60-day's Notice of Termination of Contract by his prior employer," and that, during 
that period, the Beneficiary's "obligations and his time dedicated to his prior employer were minimal." 
The Petitioner's revision of the Beneficiary's starting date with the foreign company, adding exactly 
enough time to make up for the 89-day shortfall, raises very significant questions of credibility. 
The Petitioner's initial submission repeatedly and consistently indicated that the Beneficiary's 
qualifying employment abroad began on December 13, 2021. The Petitioner provided that date on the 
Form 1-129 petition, which the Petitioner's owner and chief executive officer (CEO) signed under 
penalty of perjury. The owner/CEO also initialed every page of that form, including the page 
specifying the dates of employment abroad. In an accompanying letter, the Petitioner stated that the 
Beneficiary "has been working ... for the Brazilian parent company nonstop since December, 2021." 
The Petitioner's initial submission also included the following documents: 
• The Beneficiary's resume, showing that the Beneficiary's previous employment ended 
"11/20/2021," and showing a starting date of "12/13/2021" with the Petitioner's foreign 
affiliate; 
• A letter from the owner/CEO of the foreign company, who is also the owner/CEO of the 
petitioning U.S. company, stating that the Beneficiary "was hired for this company in 
December, 2021"; and 
• Translated employee lists from Brazil's Ministry of Labor and Ministry of Finance, dated at 
roughly monthly intervals from December 2021 to December 2022, all showing the date 
"13/12/2021" in the day /month/year fonnat. 
3 
Those same government employee lists show that the Beneficiary received a lower salary in December 
2021, which would be consistent with less than a full month of employment. 
The Petitioner's response to the NOID introduced a conflicting claim that the qualifying employment 
began on September 15, 2021. The Petitioner must resolve this inconsistency in the record with 
independent, objective evidence pointing to where the truth lies. See Matter ofHo, 19 I&N Dec. 582, 
591-92 (BIA 1988). 
In this instance, the evidence that the Petitioner submitted to support the new claim of a September 
hiring date is less thorough and persuasive than the initial evidence pointing to a December date. The 
Petitioner submitted a copy of the claimed contract, which the Petitioner did not mention in its initial 
filing. The contract does not state that the Beneficiary would begin working for the foreign entity on 
September 15, 2021. Rather, that is the date printed on the contract, and the contract does not indicate 
that the Beneficiary would begin working for the foreign entity immediately upon signing that 
contract. Therefore, this contract does not directly corroborate the newly claimed starting date. 
The Petitioner also submitted a copy of a memorandum from the executive director of the foreign 
entity, purportedly dated December 7, 2021. The translation of the memorandum states that the 
Beneficiary "joined the company on September 15th, 2021," and "due to [his] high performance and 
significant contributions," the company decided to hire him directly "starting from December 13th, 
2021." 
These materials do not outweigh the earlier materials showing a December 13th hiring date. We note 
that, in seeking to establish that the Beneficiary's travel to the United States in 2021 and 2022 was 
business-related, the Petitioner submitted copies of materials such as email messages. The Petitioner 
did not submit comparable work products from before December 13th. Also, the Petitioner did not 
submit any evidence of the monthly R$3,500 payments specified in the purported contract. 
Given the sparse documentation of the revised hiring date, we do not conclude that the Petitioner has 
established, by a preponderance of the evidence, that the Beneficiary possesses the necessary 
employment experience abroad to qualify for L-1 B nonimmigrant classification. 
The Petitioner also asse1is on appeal, for the first time, that the Beneficiary owned the company where 
he worked earlier in 2021, and that he te1minated the operations of that company in order to work for 
the Petitioner's foreign affiliate. Information about the Beneficiary's former business does not 
corroborate the material issue before us or explain why the original information provided by both the 
Petitioner and the Beneficiary consistently indicated that the Beneficiary left his earlier job in 
November 2021 and started working for the Petitioner's affiliate in December. 
Fmihe1more, briefs submitted with the NOID response and on appeal both include unsubstantiated 
claims about the Beneficiary. The NOID response brief contains this passage: "The Beneficiary's 
argument is that [after] the beginning of September, 2021 ... , his obligations and his time dedicated 
to the prior employer were minimal." But the Petitioner submitted no statement from the Beneficiary 
to that effect, and no other evidence to support this new claim. The appellate brief contains this claim: 
"The Beneficiary decided to close his company ... at the beginning of September, 2021, to work 
exclusively for" the Petitioner's foreign affiliate. 
4 
Statements in a brief, motion, or notice of appeal are not evidence and thus are not entitled to any 
evidentiary weight. See Matter ofS-M-, 22 I&N Dec. 49, 51 (BIA 1998). 
As noted above, we have disregarded the information taken from the Beneficiary's nonimmigrant visa 
application because that information was not disclosed to the Petitioner before the denial of the 
petition. At the same time, we note that the Petitioner is now demonstrably on notice regarding that 
information, and therefore we will consider that info1mation in the future if the Petitioner chooses to 
pursue this matter fmiher. 
Because the Petitioner's revision of the Beneficiary's employment dates abroad are insufficiently 
corroborated, and conflict with specific inf01mation in several previously submitted materials, we 
conclude that the Petitioner has not established that the Beneficiary had at least one continuous year 
of employment abroad with a qualifying employer. 
III. CONCLUSION 
The Petitioner has not met its burden of proof to establish by a preponderance of the evidence that a 
qualifying entity employed the Beneficiary outside the United States for at least one continuous year 
during the three years preceding the filing of the petition. We will therefore dismiss the appeal. 
ORDER: The appeal is dismissed. 
5