dismissed L-1B Case: Water Treatment Systems

iddrjling data deleted to 
prevent clearly unwarranted 
h&n of personal privacy 
PUBLIC COPY 
U.S. Departmet~t of Homeland Secllrity 
20 Mass. Ave., N.W., Rm. 3000 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
File: EAC 05 146 53281 Office: VERMONT SERVICE CENTER Date: (KT 0 4 2006 
IN RE: 
Petition: 
Petitioner: 
Beneficiary: 
Petition for a Nonimmigrant Worker Pursuant to Section 101 (a)(15)(L) of the Immigration 
and Nationality Act, 8 U.S.C. 
 1101(a)(15)(L) 
ON 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. 
inistrative Appeals Office 
EAC 05 146 53281 
Page 2 
DISCUSSION: The Director, Vermont Service Center, denied the petition for a nonirnmigrant visa. The 
matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. 
The petitioner filed this nonimmigrant petition seeking to employ the beneficiary as an L-1B nonimmigrant 
intracompany transferee pursuant to section 101(a)(15)(L) of the Immigration and Nationality Act (the Act), 8 
U.S.C. 5 1 101(a)(15)(L). The petitioner, a Pennsylvania corporation, is engaged in a manufacture of water 
treatment svstems. The ~etitioner states that it is the varent comDanv of the beneficiary's foreign employer, 
. . 
 - -. 
located in India. The beneficiary has been employed by the petitioner in 
L-1B status in the position of senior field support engineer since November 1999, and the petitioner now 
- - 
seeks to extend his status for a period of 120 days, from August 9, 2005 through December 6, 2005. 
Specifically, the petitioner seeks to extend the beneficiary's L-1B status by the number of days spent outside 
of the United States since being granted L-1B status. 
The director denied the petition concluding that the beneficiary has reached or exceeded the five-year limit on 
L-1B status imposed by the regulation at 8 C.F.R. 5 214.2(1)(12) and is thus ineligible for further extensions. 
The director observed that the beneficiary's trips outside the United States were "brief (not of not[e]worthy 
duration)." The director further concluded that "the record appears to reflect that the beneficiary has remained 
in L-1B status long after the permitted limitations and that all trips abroad have been accounted for in the 
form of recaptured time." 
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, counsel for the petitioner asserts that the director 
erred and disregarded controlling precedent by concluding that time spent by the beneficiary physically 
outside the United States since his initial admission cannot be recaptured for purposes of the five-year 
maximum period of authorized stay. Counsel asserts that the director's decision is contrary to a "recent and 
controlling decision" issued by the AAO. Counsel submits an unpublished decision in which the AAO found 
that an H-1B beneficiary was permitted an extension of stay beyond the six-year limit imposed by 8 C.F.R. 5 
214.2(h)(13)(iii) for the total number of days that the petitioner proved the beneficiary was outside the United 
States. 
To establish eligibility for the L-1 nonimrnigrant 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. 
In general, section 214(c)(2)(D)(ii) of the Act, 8 U.S.C. 3 1 184(c)(2), provides that "[tlhe period of authorized 
admission for a nonimmigrant admitted to render services in a capacity that involves specialized knowledge 
under section 101(a)(15)(L) shall not exceed 5 years." 
The regulation at 8 C.F.R. 3 214.2(1)(12) further states, in relevant part: 
EAC 05 146 53281 
Page 3 
(i) 
 Limit. An Alien who has spent five years in the United States in a specialized 
knowledge capacity or seven years in the United States in a managerial or executive 
capacity under section 101(a)(15) (L) andlor (H) of the Act may not be readmitted to 
the United States under section 101(a)(15) (L) or (H) of the Act unless the alien has 
resided and been physically present outside the United States, except for brief visits 
for business or pleasure, for the immediate prior year.. . . 
(ii) 
 Exceptions. The limitations of paragraphs (1)(12)(i) of this section shall not apply to 
aliens who do not reside continually in the United States and whose employment in 
the United States is seasonal, intermittent or consists of an aggregate of six months or 
less per year. . . . The petitioner and alien must provide clear and convincing proof 
that the alien qualifies for an exception. Clear and convincing proof shall consist of 
evidence such as arrival and departure records, copies of tax returns, and records of 
employment abroad. 
The issue in this matter is whether the beneficiary is eligible for an extension of stay beyond the five-year 
limited imposed by the statute and regulations, in order to "recapture" periods of time in which the 
beneficiary was not physically present in the United States. 
The petitioner states that the beneficiary was first admitted to the United States in L-1B status on November 17, 
1999. U.S. Citizenship and Immigration Services (USCIS) records reflect that the following L-1B approval 
notices have been issued on behalf of the beneficiary: EAC 99 248 50 15 1, valid from August 25,1999 to August 
24,2002; EAC 02 228 50089, valid from August 25,2002 to August 23, 2004; and EAC 04 216 51073, valid 
from August 24, 2004 to August 8, 2005. Thus, the beneficiary has been granted L-1B status for a period of 
nearly six years, in excess of the statutory five-year period allowed, fiom the date of his first admission to the 
United States. 
The nonirnmigrant petition was filed on April 27,2005. In a letter dated April 21,2005, the petitioner stated: 
[A]s reflected in the attached chart (Ehbit H), [the beneficiary] has spent a total of 381 days 
outside the U.S. since his initial entry in L-1B status. Our previous petition to extend [the 
beneficiary's] L-1B status sought to recapture 261 days he spend outside of the U.S. on extended 
work-related trips. We now seek to recapture the remaining 120 days [the beneficiary] spent 
outside of the U.S. and hereby request that he be granted an extension of his status through 
December 6,2005, i.e., 120 days beyond August 8,2005 (which marks the end of the validity of 
his current L-1B status). 
Pursuant to the enclosed December 11, 2004 decision by the Administrative Appeals Office 
(Exhibit I), a foreign national's stay in H or L status accrues after each admission into the U.S. 
Therefore, it is permissible for a foreign national's status to be extended to recapture the total 
number of days that helshe spent out of the country. 
EAC 05 146 53281 
Page 4 
In support of the petition, the petitioner submitted: a chart listing the beneficiary's periods of stay in the United 
States from 1999 through the present; copies of the two most recent Forms I-797A, Approval Notice, granting the 
beneficiary L-1B status; a copy of the beneficiary's current Form 1-94, Departure Record, confirming his last date 
of admission to the United States; and a copy of the above-reference unpublished AAO decision. 
The director denied the petition on May 11, 2005 concluding that the beneficiary is not eligible for an 
extension of his L-IB status. The director characterized the beneficiary's time spent outside the United States 
as "brief trips abroad (not of not[e]worthy duration)." The director concluded that the beneficiary has 
remained in L-1B status "long after the permitted limitations," and found that all trips abroad had been 
accounted for in the form of recaptured time. 
On appeal, counsel for the petitioner asserts that as the beneficiary has been outside the United States for a 
total of 381 days since his initial admission to the United States in L-1B status, and has "recaptured" only 261 
days, he is eligible for an additional 120 days in L-1B status. Counsel again relies on the recent unpublished 
decision in which the AAO found that the time an H-1B beneficiary spent outside the United States should 
not be counted towards the six-year limit on stay imposed by the statute and regulations, and the beneficiary 
was thus eligible for an extension of H-1B status for a total number of days that the petitioner proved the 
beneficiary was outside the country. 
Upon review, the petitioner has not established that the beneficiary is eligible for an additional extension of L- 
IB status. Although the appeal will be dismissed, the AAO concurs with counsel's assertion that any period 
of time spent outside the United States, regardless of its duration, should not be applied to the five-year limit 
on stay imposed by the statute and regulations. The director, in her May 11, 2005 decision, appears to 
consider the beneficiary's trips outside of the United States too brief in duration to be considered for 
recapture. The director's position was incorrect according to current USCIS policy for calculating periods of 
admission. 
As noted above, section 214(c)(2)(D)(ii) of the act provides that the " period of authorized admission" for an 
L-1B nonimrnigrant may not exceed five years. Section 101(a)(13)(A) of the Act states that "[tlhe terms 
'admission' and 'admitted' mean, with respect to an alien, the lawful entry of the alien in the United States 
after inspection and authorization by an immigration officer." The plain language of the statute and the 
regulations indicates that the five-year period accrues only during periods when the alien is lawfully admitted 
and physically present in the United States. Ths conclusion is further supported and explained by the court in 
Nair v. Coultice, 162 F. Supp. 2d 1209 (S.D. Cal. 2001). It is further supported by a policy memorandum 
issued by USCIS that adopts the reasoning of Matter of I-, USCIS Adopted Decision 06-0001 (AAO, October 
18, 2005), available at: http://uscis.~ov/~a~hics/lawregs/decisions.htm, as formal policy. See Memorandum 
from Michael Aytes, Acting Associate Director for Domestic Operations, Citizenship and Immigration 
Services, Department of Homeland Security, Procedures for Calculating Maximum Period of Stay Regarding 
the Limitations on Admission for H-IB and L-l Nonimmigrants. AFM Update AD 05-21 (October 21,2005). 
Although USCIS adopted Matter of& as formal policy subsequent to the director's decision in this matter, the 
unpublished decision submitted by counsel in support of the instant petition and appeal reflects the same 
interpretation of the statutory limitations on stay and persuasively supports the petitioner's argument that any 
EAC 05 146 53281 
Page 5 
time spent outside the United States is eligible to be "recaptured or added back to the beneficiary's period of 
L-1B status at the time an extension is requested. Here, the beneficiary's claimed periods of admission in the 
United States do not appear to have reached an aggregate of five years of physical presence in the United 
States in L-1B status. 
However, the petitioner's claims fail on an evidentiary basis. The petitioner has submitted no documentary 
evidence in support of its claims regarding the beneficiary's periods of stay in the United States. The AAO 
notes that the petitioner is in the best position to organize and submit proof of the beneficiary's departures 
from and reentry into the United States. Copies of passport stamps or Form 1-94 arrival-departure records, 
without an accompanying statement or chart of dates the beneficiary spent outside the country, could be 
subject to error in interpretation, might not be considered probative, and may be rejected. Similarly, a 
statement of dates spent outside of the country must be accompanied by consistent, clear and corroborating 
proof of departures from and reentries into the United States. The petitioner must submit supporting 
documentary evidence to meet his burden of proof. See Matter of Soflci, 22 I&N Dec. 158, 165 (Comm. 
1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm. 1972)). 
The petitioner's evidence consists solely of a chart summarizing the beneficiary's periods of stay in the 
United States since November 1999 and evidence of the date of his most recent admission, and thus the 
petitioner has failed to meet its evidentiary burden. The AAO cannot find that the beneficiary is eligible to 
recapture the requested number of days based on the petitioner's and counsel's unsupported assertions. 
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 ofLaureano, 19 I&N Dec. I (BIA 1983); Matter of Ramirez-Sanchez, 
17 I&N Dec. 503,506 (BIA 1980). 
Based on the foregoing discussion, the petitioner has not established that the beneficiary is eligible for an 
extension of his L-1B status beyond the five-year limited on stay imposed by section 214(c)(2)(D)(ii). For this 
reason, the appeal will be dismissed. 
The AAO acknowledges that USCIS previously approved an extension of the beneficiary's L-1B status 
beyond the five-year limit on stay. It must be emphasized that that each petition filing is a separate proceeding 
with a separate record. See 8 C.F.R. 5 103.8(d). In malung a determination of statutory eligibility, USCIS is 
limited to the information contained in that individual record of proceeding. See 8 C.F.R. 5 103.2(b)(16)(ii). 
Despite any number of previously approved petitions, USCIS 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 
29 1 of the Act. 
If the previous nonimmigrant petition was approved based on the same unsupported assertions regarding the 
beneficiary's periods of stay in the United States that are contained in the current record, the approval would 
constitute material and gross error on the part of the director. The AAO is not required to approve 
applications or petitions where eligibility has not been demonstrated, merely because of prior approvals that 
may have been erroneous. See, e.g. Matter of Church Scientology International, 19 I&N Dec. 593, 597 
(Comm. 1988). It would be absurd to suggest that USCIS or any agency must treat acknowledged errors as 
EAC 05 146 53281 
Page 6 
binding precedent. Sussex Engg. Ltd. v. Montgomery, 825 F.2d 1084, 1090 (6th Cir. 1987), cert. denied, 485 
U.S. 1008 (1988). 
Furthermore, the AAO's authority over the service centers is comparable to the relationship between a court 
of appeals and a district court. Even if a service center director had approved the nonimmigrant petitions on 
behalf of the beneficiary, the AAO would not be bound to follow the contradictory decision of a service 
center. Louisiana Philharmonic Orchestra v. INS, 2000 WL 282785 (E.D. La.), afyd, 248 F.3d 1139 (5th Cir. 
2001), cert. denied, 122 S.Ct. 51 (2001). 
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. 8 1361. Here, that burden has not been met. 
ORDER: The appeal is dismissed.