Resources for 04-26-11 Seminar - AILA webCLE

WAC 10081 50986Page 2DISCUSSION: The Director, California Service Center, denied the nonimmigrant petition and certified thedecision to the Administrative Appeals Office (AAO) for review, in accordance with 8 C.F.R. § I03.4(a)(5). TheAAO will withdraw the director's decision and approve the petition.The petitioner filed this nonimmigrant petition seeking to employ the beneficiary as an L-IA nonimmigrantintracompany transferee pursuant to section 10 I(a)(I5)(L) ofthe Immigration and Nationality Act (the Act), 8U.S.c. § 1101(a)(I5)(L). The petitioner, a Michigan corporation, operates as an automotive parts supplier. Itstates that it is a subsidiary of Fawer Automotive Parts Limited Company, located in China. The petitionerseeks to employ the beneficiary in the position of president for a period ofthree years. The beneficiary waspreviously granted L-I A status in order to open a new office in the United States, and the petitioner's requestto extend his status was denied in October 2009.The petitioner then filed the current "new employment" petition on January 29, 20IO. The director denied thepetition on February 25, 2010, concluding that the petitioner failed to establish that the beneficiary would beemployed in the United States in a primarily managerial or executive capacity. On November 17, 2010, thedirector issued a new decision denying the petition on the same grounds and certified the decision to theAAO.In accordance with 8 C.F.R. §I03.4(a)(2), the director notified the petitioner of the certification and providedan opportunity for the petitioner to submit a brief to the AAO within 30 days. Counsel for the 'petitionersubmitted a briefand additional evidence to the AAO on December 15, 20I O.On certification, counsel claims that U.S. Citizenship and Immigration Services (USCIS) failed to follow itsown policies with respect to extension petitions. Counsel asserts that the USCIS should have deferred to itsprior determination that the position offered is in fact in a managerial or executive capacity. Counsel furtherasserts that the director's decision ignores the sizeable operations ofthe petitioner's Chinese parent company,mischaracterizes the nature ofthe roles performed by the beneficiary's subordinates, places undue emphasison the size of the U.S. company, and is based, in part, upon irrelevant factors such as the size of thepetitioner's office space and the beneficiary's salary relative to the petitioner's other employees. In furthersupport of the petition, the petitioner submits a letter from the president of the petitioner's parent company,who seeks to clariJY the nature of the beneficiary's proposed duties for the U.S. subsidiary and clariJYdiscrepancies noted in the director's decision.Upon review, the AAO agrees with counsel that the director's decision is based, in part, on errors of fact andflawed reasoning. The petitioner has met its burden to establish by a preponderance ofthe evidence that thebeneficiary will be employed in a primarily managerial capacity. Accordingly, the AAO will withdraw thedirector's decision and approve the petition.Although the petition will be approved, the AAO notes that this matter is not, as claimed by counsel, a requestfor an extension of the beneficiary's previously granted L-IA status. Furthermore, even if this were anextension petition, the director owed no deference to the previous finding that the beneficiary qualified for L­IA status to open a new office. See Memorandum of William R. Yates, Associate Director for Operations,AILA InfoNet Doc. No. 11012430. (Posted 01/24/11)