Resources for 04-26-11 Seminar - AILA webCLE

WAC 07 277 53214Page 7DenialThe director denied the petition on November 26, 2007, finding that was not engaged in the regular,systematic, and continuous provision of goods or services. In the decision, the director stated that "rarelydoes USCIS receive such evasive and ambiguous responses with a near complete failure to provide requesteditems as has been its experience with this petitioner." The director discussed how the petitioner had failed tosubmit quarterly wage reports even though it had several hundred visa petitions approved and had been doingbusiness for nearly a year. The director also noted that the beneficiary would be providing services for 'sclient and that the beneficiary would be controlled and supervised by 's management team. The directorconcluded that was in business as an immigration and human resources department for and thatthere was no business activity occurring at the petitioner's location in Raleigh, North Carolina.MotionOn January 30, 2008, after reopening the decision on motion, the director issued a new decision concludingagain that the petitioner was not doing business and specifically concluded that must show that it isdoing business as a separate legal entity outside of the larger group. The director noted thatcontinued to identify itself with the global organization and was essentially relying on the businessconducted "through" a parent, subsidiary, or affiliate rather than qualifying on its own. The director analyzedthe governing L-l regulations and noted that USCIS has long held that a corporation exists as a separate legalentity. See Matter ofM, 8 I&N Dec. 24 (BIA 1958; A.G. 1958).The director observed that "the petitioner is acting more as a staffing agent for and merely maintains thealien's payroll records ... rather than acting as the actual employer." The director concluded that the "realemployer" is the office that has the contract with the end user of its IT services. The director affirmedher denial and certified the decision to the AAO for review.CertificationOn certification, counsel for the petitioner asserts that is "doing business" under the regulations becauseit is a qualifying organization, an actual employer, and because it is providing services. Counsel argues that"the fact that it provides services internally within the group of companies ... rather than on the openmarketplace is immaterial and does not mean that it is not 'providing services' under the 'doing business'provision ofthe regulations."In an effort to clarify the nature of the petitioner's business operations, counsel notes that "manages thedeployment of temporary IT personnel from 's Centers abroad." Counsel emphasizesthat this service is a critical link in 's global operations:Typically such deployment would be run by the parent company's subsidiary abroad (in thiscase, India). The difference in this case is simply that established a separate U.S.corporation to consolidate the deployment of its foreign IT specialists for certain services. Inthe case on appeal, bills India on a monthly basis for its services, based on an inter-