AAO I-129 Non-Immigrant Worker Non-Precedent …1012-Whalen.pdfAAO I-129 Non-Immigrant Worker...

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AAO I-129 Non-Immigrant Worker Non-Precedent Decisions (New Format) Posted As Of Thursday, October 1, 2015

Compiled By Joseph P. Whalen

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NATURE OF PROCEEDING OUTCOME/COMMENTS

SEP012015_01D2101.pdf

Matter of N-H-S-, LLC, ID#

15153 (AAO Sept. I, 2015)

MOTION OF AAO DECISION

DISMISSED

The Petitioner, a healthcare staffing and

placement company, seeks to employ the

beneficiary as a clinical coordinator and to

classify him as a nonimmigrant worker in a

specialty occupation. ..... The Director

denied the petition, concluding that the

Petitioner did not establish that the

proffered position qualifies as a specialty

occupation ….. The Petitioner submitted an

appeal of the Director's decision to us. We

reviewed the record of proceeding and

determined it did not contain sufficient

evidence to establish that the Petitioner

would employ the Beneficiary in a specialty

occupation position. We provided a

comprehensive analysis of the Director's

decision and dismissed the appeal. The

petitioner now submits the instant motion

to reconsider.

SEP022015_01D2101.pdf

Matter of B-S-S-, INC, ID#

12592 (AAO Sept. 2, 20 15)

APPEAL OF CALIFORNIA SERVICE

CENTER DECISION DISMISSED

The Petitioner, a business development and

informational services, seeks to employ the

Beneficiary as a quality analyst and to

classify her as a nonimmigrant worker in a

mailto:[email protected]

http://www.uscis.gov/sites/default/files/err/D2%20-%20Temporary%20Worker%20in%20a%20Specialty%20Occupation%20or%20Fashion%20Model%20(H-1B)/Decisions_Issued_in_2015/SEP012015_01D2101.pdf





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specialty occupation. … The Director denied

the petition, finding that the Petitioner does

not establish that it will be a "United States

employer" having an employer-employee

relationship with the Beneficiary as an H-1B

temporary employee. Thereafter, the

Petitioner filed a motion to reopen, which

was dismissed. The matter is now before us

on appeal.

SEP032015_01D2101.pdf

Matter of S- LLC-, ID#14007

(AAO Sept. 3, 2015)



The Petitioner, a health and wellness

products business, seeks to employ the

Beneficiary as an accountant and to classify

her as a nonimmigrant worker in a specialty

occupation. …. The Director denied the

petition, finding that the evidence of record

did not establish that the proffered position

qualifies as a specialty occupation.

SEP032015_02D2101.pdf

Matter of A-I-, ID#14180 (AAO

Sept. 3, 2015)

APPEAL OF VERMONT SERVICE


The Petitioner, a vocational institute, seeks

to employ the Beneficiary as an allied health

instructor and to classify her as a

nonimmigrant worker in a specialty

occupation. ….







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The Director revoked the approval of the

visa petition finding that the Petitioner had

violated the terms and conditions of the

approved petition. Specifically, the Director

noted that an administrative site visit to

verify the Beneficiary's employment

revealed that the Petitioner was not paying

the Beneficiary the proffered wage

established by the terms and conditions of

the approved petition. On appeal, the

Petitioner asserts that the Director's basis

for revocation of the approval of the petition

was erroneous.

A review of the record [sic] of U.S.

Citizenship and Immigration Services

indicates that the Beneficiary adjusted

status to that of a lawful permanent resident

on May 20, 2015. Because the Beneficiary is

presently a lawful permanent resident,

further pursuit of the matter at hand is

moot. Therefore, this appeal is dismissed.

SEP102015_01D2101.pdf

Matter of N-E-S-, LLC, ID#

13279 (AAO Sept. 10, 2015)



The Petitioner, an information technology

services firm, seeks to employ the

Beneficiary as a computer systems analyst

and to classify him as a nonimmigrant

worker in a specialty occupation. …….






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The Director denied the petition, finding the

evidence insufficient to establish that (1) the

proffered position qualifies as a specialty

occupation; and (2) the Petitioner will have

an employer-employee relationship with the

Beneficiary. ………..

10 The agency made clear long ago that

speculative employment is not permitted in

the H-1 B program. A 1998 proposed rule

documented this position as follows:

Historically, the Service has not

granted H-1 B classification on the

basis of speculative, or undetermined,

prospective employment. The H-1B

classification is not intended as a

vehicle for an alien to engage in a job

search within the United States, or for

employers to bring in temporary

foreign workers to meet possible

workforce needs arising from potential

business expansions or the expectation

of potential new customers or

contracts. To determine whether an

alien is properly classifiable as an H-1B

nonimmigrant under the statute, the

Service must first examine the duties of

the position to be occupied to ascertain

whether the duties of the position

require the attainment of a specific





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bachelor's degree. See section 214(i) of

the Immigration and Nationality Act

(the "Act"). The Service must then

determine whether the alien has the

appropriate degree for the occupation.

In the case of speculative employment,

the Service is unable to perform either

part of this two-prong analysis and,

therefore, is unable to adjudicate

properly a request for H-1B

classification. Moreover, there is no

assurance that the alien will engage in a

specialty occupation upon arrival in

this country.

63 Fed. Reg. 30419, 30419 - 30420 (June 4,

1998). While a petitioner is certainly

permitted to change its intent with regard to

non-speculative employment, e.g., a change

in duties or job location, it must nonetheless

document such a material change in intent

through an amended or new petition in

accordance with 8 C.F.R. § 214.2

(h)(2)(i)(E).

SEP142015_01D2101.pdf

Matter of B-D-C-, Corp. ID#

13323 (AAO Sept. 14, 2015)



The Petitioner, a studio, seeks to employ the

Beneficiary as a set designer and classify her


http://www.gpo.gov/fdsys/pkg/FR-1998-06-04/pdf/98-14785.pdf

http://www.gpo.gov/fdsys/pkg/FR-1998-06-04/pdf/98-14785.pdf





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See: Entry Level Jobs Are Poor

Candidates for H1B Visas

as a as a nonimmigrant worker in a specialty

occupation………….

The primary issue is whether the Petitioner

has provided sufficient evidence to establish

that it will employ the beneficiary in a

specialty occupation. ……..

In the letter submitted in support of the

instant petition, the Petitioner states that it

"provides photography video and design

services for individuals and companies."

The Petitioner also states that its clients

include fashion magazine companies, fine

food restaurants, schools, designers, and

bloggers. With respect to the proffered

position, the Petitioner states that

"candidates must possess at least a

Bachelor's degree in set design or related

academic field." The Petitioner also

provided the following description of the job

duties, along with the percentage of time

spent performing each duty: ……….

The Petitioner submitted a Labor Condition

Application (LCA) in support of the instant

H-1 B. The Petitioner indicates that the

proffered position corresponds to the

occupational category "Set and Exhibit

Designers"-SOC (ONET/OES Code) 27-

1027, at a Level I (entry level) wage. ……


http://www.slideshare.net/BigJoe5/entry-level-jobs-are-poor-candidates-for-h1b-visas

http://www.slideshare.net/BigJoe5/entry-level-jobs-are-poor-candidates-for-h1b-visas




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SEP142015_02D2101.pdf

Matter of F-IPSM-S-, LLC, ID#

13951 (AAO Sept. 14, 20 15)



AS MOOT

.A review of U.S. Citizenship and

Immigration Services (USCIS) records

indicates that on August 12, 2015,

subsequent to the denial of the instant

petition, the Petitioner filed another Form I-

129 seeking nonimmigrant H-1B

classification on behalf of the Beneficiary.

USCIS records further indicate that this

other petition was approved on August 24,

2015. Because the Beneficiary in the instant

petition has been approved for H-1B

employment with the Petitioner, further

pursuit of the matter at hand is moot.

SEP142015_03D2101.pdf

Matter of O-, Inc., ID# 13057

(AAO Sept. 14, 2015)



AS MOOT

U.S. Citizenship and Immigration Services

(USCIS) records indicate that on April 13,

2015, a date subsequent to the denial of the

instant petition, the Petitioner filed another

Form I-129 seeking nonimmigrant H -1 B

classification on behalf of the Beneficiary.

USCIS records further indicate that this







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petition was approved on May 7, 2015. We

sent a letter to the Petitioner requesting

verification of its intent to pursue the appeal

on July 1, 2015, and have not received a

response.

Because the Beneficiary of the instant

petition has been approved for H-1B

employment with the Petitioner, further

pursuit of the matter at hand is moot.

SEP142015_04D2101.pdf

Matter of M-E-, Inc., ID#

13332 (AAO Sept. 14, 20 15)

MOTION OF ADMINISTRATIVE

APPEALS OFFICE DECISION

DENIED

The Petitioner, a fast-food restaurant, seeks

to employ the Beneficiary as a financial

manager and to classify him as a

nonimmigrant worker in a specialty

occupation.

On May 12, 2011, the Director of the

Vermont Service Center denied the

nonimmigrant visa petition. The Petitioner

appealed this denial to the Administrative

Appeals Office (AAO), and we dismissed the

appeal on November 7, 2012. On December

6, 2012, the Petitioner filed a motion to

reopen and reconsider, which we denied on

July 14, 2014. On August 14, 2014, the






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Petitioner again filed a motion to reopen and

reconsider, which we denied on February 6,

2015. The matter is once again before us on

a motion to reopen and reconsider. The

combined motion will be denied pursuant to

8 C.F.R.§ 103.5(a)(2), (3), and (4).

SEP102015_01D7101.pdf

Matter of B-I-U- Corp., ID#

13168 (AAO Sept. 10, 2015)

MOTION OF AAO DECISION

DENIED

The Petitioner, a corporation organized in

the State of New Jersey that engages in the

wholesale of general merchandise, seeks to

extend the employment of its vice-president

as an L-1 A nonimmigrant intracompany

transferee. See section 101(a)(15)(L) of the

Immigration and Nationality Act (the Act),

8 U.S.C. § 1101(a)(15)(L). The Director,

Vermont Service Center, denied the

petition. The Petitioner has subsequently

filed a total of three appeals and nine

motions with the Administrative Appeals

Office (AAO). Most recently, we dismissed

the Petitioner's motion to reopen and

reconsider in a decision dated January 8,

2015. The matter is again before us on a

motion to reopen and reconsider. The

motion will be denied.


http://www.uscis.gov/sites/default/files/err/D7%20-%20Intracompany%20Transferees%20(L-1A%20and%20L-1B)/Decisions_Issued_in_2015/SEP102015_01D7101.pdf




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The Director denied the petition on

February 24, 2004, concluding that the

Petitioner did not establish that the

Beneficiary would be employed in a

primarily managerial or executive capacity

under the extended petition. ……

SEP102015_02D7101.pdf

Matter of K-I-, Inc., ID# 13257

(AAO Sept. 10, 2015)



The Petitioner, a New Jersey corporation

operating a comprehensive software

consulting business, seeks to employ the

Beneficiary as an L-1B nonimmigrant

intracompany transferee. ……..

…….. The Petitioner seeks to employ the

Beneficiary in the position of Technical

Recruiter for a period of two years.

The director denied the petition, concluding

that the Petitioner did not establish that: (1)

the Beneficiary's employment abroad was in

a position that was managerial, executive, or

involved specialized knowledge, (2) the

Beneficiary possesses specialized

knowledge, and (3) the Beneficiary's

position in the United States involves

specialized knowledge.






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SEP112015_01D7101.pdf

Matter of H-G-, LLC, ID#

13706 (AAO Sept. 11, 2015)

APPEAL OF VERMONT SERVICE CENTER DECISION

SUMMARILY DISMISSED

The Petitioner, an entity that operates as an

importer and exporter of feeder stock, seeks

to employ the Beneficiary in the position of

director of international sales. …….

On December 15, 2014, the Director issued a

decision denying the petition based on the

conclusion that the Petitioner does not have

a qualifying relationship with the

Beneficiary's former employer abroad and is

therefore ineligible for the immigration

benefit sought herein.

The Petitioner subsequently filed an appeal.

However, the Petitioner submitted no

evidence or information addressing the

actual grounds for denial; nor did the

Petitioner dispute the ground for denial.

………….

SEP112015_02D7101.pdf

Matter of U-S-A-M-, Inc., ID#

13739 (AAO Sept. 11, 2015)



The Petitioner, a business engaged in the

production and distribution of baked goods,

seeks to classify the beneficiary as an

intracompany transferee. ….. It seeks to

employ the Beneficiary as its "Operations







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Manager" for a period of one year in order

to open a new office in the United States.

The Director denied the petition, concluding

that the Petitioner did not establish that the

Beneficiary has been or will be employed in

a primarily managerial or executive

capacity.

SEP142015_01D7101.pdf

Matter of M-I-, LLC, ID# 13130

(AAO Sept. 14, 20 15)



The Petitioner, an import and export

company trading in automobiles and

automobile parts, seeks to employ the

Beneficiary as an L-1 A nonimmigrant

intracompany transferee. …….. The Director

denied the petition, concluding that the

evidence of record did not establish that the

Beneficiary will [be] employed in a

qualifying managerial or executive position

within one year of approval of the petition,

or that the new office "will be able to meet its

financial obligations the first year of

operation."

Although we will affirm the Director's

finding that the Petitioner did not establish

by a preponderance of the evidence that it

will employ the Beneficiary in a qualifying

managerial or executive capacity within one






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year, we will withdraw the Director's

observation that the Petitioner did not

establish that it "will be able to meet its

financial obligations the first year of

operation." Upon review, the Petitioner

provided sufficient evidence to establish

that it has funding to cover its startup costs

and initial operating expenses, and it

provided adequately supported sales

projections to demonstrate how it intends to

cover costs accrued during the initial year of

operations. The Petitioner does not need to

establish that all projected first year

operating costs and expenses will be covered

by an initial investment made prior to the

time of filing. Nevertheless, for the reasons

discussed above, we find that the record

does not establish that the Beneficiary

would be employed in a qualifying

managerial or executive capacity within one

year of the petition approval. Accordingly,

the appeal will be dismissed.

III. ADDITIONAL ISSUE

The remaining issue addressed by the

Director is the Beneficiary's foreign

employment in a qualifying capacity.

Specifically, the Director stated: "Although

not addressed in the RFE, if you choose to

appeal this decision you will need to

establish the beneficiary has been employed





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in a qualifying managerial or executive

capacity ... for one (1) year in the past three

(3) years."

On appeal, the Petitioner summarizes the

evidence submitted to establish that the

Beneficiary was employed in a qualifying

capacity by its Nigerian affiliate. The

Petitioner asserts that "Since this was not

an issue that was included in the RFE

in the initial petition, this cannot be a

reason for denial of the case, and

bringing the issue up in one sentence

as a matter of fact in the denial

decision is arbitrary, capricious and

against USCIS policy."

We agree with the Petitioner that the

Director did not properly deny the petition

on this basis. When denying a petition, a

director has an affirmative duty to explain

the specific reasons for the denial; this duty

includes informing a petitioner why the

evidence failed to satisfy its burden of proof

pursuant to section 291 of the Act, 8 U.S.C.

§ 1361. See 8 C.F.R. § 103.3(a)(l)(i). As the

Director did not provide the Petitioner with

information regarding specific evidentiary

deficiencies or even clearly deny the petition

based on a finding that Petitioner did not

establish that the Beneficiary was employed

by the foreign entity in a qualifying capacity,





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we will withdraw the Director's comment

and will not address this issue further.

SEP152015_01D7101.pdf

Matter of R-A-A-, Inc., ID#

14030 (AAO Sept. 15, 2015)


CENTER DECISION SUSTAINED

The Petitioner, an architectural planning

and design company, seeks to employ the

Beneficiary as an architect/parametric

design specialist under the L-1B

nonimmigrant classification. …..

…….. Upon reviewing the entire record of

proceeding as supplemented by the

Petitioner's submission on appeal, we

conclude that the record now contains

sufficient evidence to overcome the bases for

the Director's decision.

Specifically, the totality of the evidence

now establishes that the Beneficiary has

special knowledge of the Petitioner's

techniques in international markets and

that his special knowledge is distinct in

comparison to the general modeling and

architectural design skills that are generally

found within the Petitioner's group.

Additionally, the totality of the evidence

establishes that the Beneficiary is one of the

few employees within its organization who

possesses advanced knowledge of the






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Petitioner's processes and procedures in his

area of expertise, as the record shows that he

contributed to the development of such

processes during his tenure with the

Petitioner's group overseas. Finally, the

totality of the record establishes that the

Beneficiary has been employed abroad and

will be employed in the United States in a

position requiring this specialized

knowledge.

SEP142015_01D8101.pdf

Matter of W-V-T-USA-; LLC,

ID# 13265 (AAO Sept. 14,

2015)

1 Pursuant to 8 C.F.R. § 214.2(o)(12)(ii), an

extension of stay may be authorized in

increments of up to one year for an 0-1

beneficiary to continue or complete the

same activity for which he or she was

admitted plus an additional 10 days to

allow the beneficiary to get his or her

personal affairs in order. A five-year

extension of stay cannot be granted.



The Petitioner, a baseball instruction and

coaching business, seeks to classify the

Beneficiary as a foreign national of

extraordinary ability in athletics. See

Immigration and Nationality Act (the Act) §

101(a)(15)(0)(i), 8 U.S.C. § 1101(a)(15)(0)(i).

The Director, Vermont Service Center,

denied the petition. ……

The Petitioner currently employs the

Beneficiary as a baseball coach pursuant to

an approved O-1 petition. The Petitioner

seeks to extend the Beneficiary's

employment for a period of five years. 1 After

issuing two requests for evidence (RFEs)

and then considering the record, the


http://www.uscis.gov/sites/default/files/err/D8%20-%20Aliens%20of%20Extraordinary%20Ability%20or%20Achievement%20(O-1,%20O-2,%20and%20O-3)/Decisions_Issued_in_2015/SEP142015_01D8101.pdf




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Director denied the petition, concluding

that the Petitioner did not establish that the

Beneficiary has achieved the required

national or international acclaim in his field.

Specifically, the Director determined that

the Petitioner had not satisfied the initial

evidentiary requirements set forth at 8

C.F.R. § 214.2(o)(3)(iii), which requires

documentation of a one-time achievement

or materials that meets at least three of the

eight regulatory criteria. On appeal, the

Petitioner submits a brief and additional

documentation. For the reasons discussed

below, the Petitioner has not satisfied the

plain language requirements of at least three

criteria.

SEP032015_01D9101.pdf

Matter of F-I-G-, Inc., ID#

11762 (AAO Sept. 3, 2015)



The Petitioner, a talent management

company, seeks to classify the Beneficiaries

as members of an internationally recognized

entertainment group. See the Immigration

and Nationality Act (the Act) §

101(a)(15)(P)(i), 8 U.S.C. § 1101(a)(15)(P)(i).

The Director, Vermont Service Center,

denied the petition. …..

On appeal, the Petitioner asserts that it has

established that the Beneficiaries are an


http://www.uscis.gov/sites/default/files/err/D9%20-%20Artists,%20Athletes,%20and%20Entertainers%20(P-1,%20P-2,%20and%20P-3)/Decisions_Issued_in_2015/SEP032015_01D9101.pdf




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internationally recognized entertainment

group. The Petitioner submits additional

documentary evidence in support of the

appeal. On May 5, 2015, we issued a notice

of derogatory information and intent to

dismiss (NOID) pertaining to the

Petitioner's corporate status. The Petitioner

responded. Upon review, and for the

reasons stated herein, while the Petitioner

has overcome the concerns in our NOID, we

concur with the Director's determination

that the Petitioner has not established the

Beneficiaries' eligibility for the requested

classification.

SEP032015_01D13101.pdf

Matter of C-G-S-E-O-, ID#

14799 (AAO Sept. 3, 2015)



AS MOOT

On August 19, 2015, the Petitioner requested

that the appeal and petition be cancelled

because the job offered is no longer

available. The regulation at 8 C.F .R. § 103

.2(b)( 6), however, indicates that an

application or petition may not be

withdrawn once a decision is issued by U.S.

Citizenship and Immigration Services.

Nonetheless, as the request to withdraw the

original petition was received before the

issuance of our decision in this matter, the


http://www.uscis.gov/sites/default/files/err/D13%20-%20Non-Immigrant%20Religious%20Workers/Decisions_Issued_in_2015/SEP032015_01D13101.pdf




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issues in this proceeding are now moot, and

the appeal will be dismissed on this basis.

SEP082015_01D13101.pdf

Matter of B-T-F-, ID# 13869

(AAO Sept. 8, 2015)



DENIED

The Petitioner, a Hindu temple, seeks to

employ the Beneficiary as a nonimmigrant

religious worker to perform services as a

temple paricharaka (chef). See Immigration

and Nationality Act (the Act) §

101(a)(15)(R), 8 U.S.C. § 1101(a)(15)(R). The

Director, California Service Center, denied

the petition and we dismissed a subsequent

appeal. The matter is now before us on a

motion to reopen and reconsider. The

motion will be denied.

In order to properly file a motion to reopen

or reconsider, the regulation at 8 C.F.R. §

103.5(a)(1)(i) provides that a petitioner

must file the complete motion within 30

days of service of the unfavorable decision.

If the decision was mailed, the motion must

be filed within 33 days. See 8 C.F.R. § 103.8

(b). The date of filing is not the date of

mailing, but the date of actual receipt. See 8

C.F .R. § 103.2(a)(7)(i). For a motion to

reopen, the regulation grants U.S.






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Citizenship and Immigration Services

(USCIS) the discretion to excuse a

reasonable delay that is beyond the control

of the petitioner. See 8 C.F.R. § 103.5

(a)(1)(i). There is no regulation allowing for

an untimely motion to reconsider. A motion

that does not meet applicable requirements

shall be dismissed. 8 C.F.R. § 103.5(a)(4).

In this case, the record reflects that our

decision dismissing the appeal was issued

on January 16, 2015. Our decision indicated

that any motion must be filed within 33 days

of the date of the decision and stated in bold,

"Do not file a motion directly with the AAO."

Nonetheless, the Petitioner submitted the

motion, without fee, directly to our office on

February 26, 2015, forty-one days after the

decision was issued. We returned the

documentation to the petitioner with

instructions as to where to file the motion

and informed the petitioner that the filing

fee for a Form I-290B, Notice of Appeal or

Motion, was $630. On March 20, 2015, the

USCIS Phoenix Lockbox rejected the

petitioner's motion as filed without the

proper fee. The motion with the appropriate

fee was filed with USCIS on March 31, 2015,

74 days after we issued our decision.

Although the regulation at 8 C.F.R. § 103.5

(a)(1)(i) allows us to excuse a reasonable





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delay that is beyond the control of the

applicant in the exercise of discretion for

motions to reopen, the Petitioner has not

addressed the untimely filing in this case.

Therefore, the motion will be denied.

SEP082015_02D13101.pdf

Matter of M-M-A -C-, ID#

13334 (AAO Sept. 8, 20 15)



DENIED

The Petitioner, a church, seeks to employ

the Beneficiary as a nonimmigrant religious

worker to perform services as a pastor. See

Immigration and Nationality Act (the Act) §

101(a)(15)(R), 8 U.S.C. § 1101(a)(15)(R). The

Director, California Service Center, denied

the petition, concluding that the Petitioner

did not establish how it intends to

compensate the Beneficiary. The matter is

now before us on appeal. The appeal will be

dismissed. ……………………..

Considering the record in its totality, the

Petitioner has not met its burden of

establishing by a preponderance of the

evidence its intent to compensate the

Beneficiary as stated.






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SEP102015_01D13101.pdf

Matter of B-F-J-S-D-A-C-M-,

ID# 12710 (AAO Sept. 10, 2015)



The Petitioner, a church, seeks to classify the

Beneficiary as a nonimmigrant religious

worker to perform services as a "Religious

Bible Worker." See 101(a)(15)(R) of the

Immigration and Nationality Act (the Act),

8 U.S.C. § 1101(a)(15)(R). The Director,

California Service Center, initially approved

the employment-based nonimmigrant visa

petition on November 29, 2011. On further

review, the Director determined that the

Beneficiary was not eligible for the visa

preference classification. Accordingly, the

Director served the Petitioner with a notice

of intent to revoke (NOIR) the approval of

the preference visa petition stating the

reasons therefore and subsequently

exercised her discretion to revoke the

approval of the petition on December 9,

2014. The matter is now before us on appeal.

We will dismiss the appeal.

Please note that this is only current as of date and time of posting.



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