Interim Decision #2918
MATTER OF KLOETI
In Visa Petition Proceedings
CHI-N-22755
Decided by Regional Commissioner October 29,
(t) The beneficiary of a petition under 101(a)(15)(L) of the Act 8 U.S C. 1101(aX15)(L).
does not satisfy the qualifying experience requirement when the beneficiary's only
previous employMent for the petitioning firm was as a B4 nonimmigrant in the United
States.
(2) Matter of Continental Grain, 14 UN Dec. 140 (D.D. 1972), holds that a beneficiary's
one year qualifying experience with the petitioner must be wholly outside the United
States, except for brief trips to the United States to attend conferences, training
sessions, or similar functions.
(3) 8 C.F.R. 214.2(1)(2) requires a petitioner to submit "a statement describing the
capacity in which the beneficiary has been employed abroad" to support the petition
for 1..4 status.
ON BEHALF OF PETITIONER: Samuel D. Myers, Esquire
Freedman, Freedman & Myers, Ltd.
Suite 1902, 2 North LaSalle Street
Chicago, Illinois 60602
This matter is before me on appeal from the District Director's decision of December 31, 1981, denying the petition to classify the benefi
ciary as an intra-company transferee pursuant to section 101(a)(15)(L)
of the Immigration and Nationality Act, 8 U.S.C. 1101(a)(15)(L). as
amended. The appeal will be dismissed.
The petitioner is the United States branch of a Swiss firm, Ladmatic
AG, Flaesch/Switzerland, which designs and builds systems, robots,
fixtures and tools for grinding machines. The petitioning United States
branch was established in 1978 and has two employees, its president and
an engineer. It handles fixtures and tools for the Swiss-made grinding
machines which have been sold to United States customers. The petitioner has gross annual sales of $350,000.
The beneficiary is a 28-year-old native and citizen of Switzerland
whom the petitioner wishes to employ as a service engineer, a position
which allegedly involves specialized knowledge. As a service engineer,
the beneficiary would train operator:, fur the petitiuner's equipment in
its customers' plants and then stand by for maintenance and emergency
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Interim Decision #2918
repairs. The beneficiary has been doing this work in the United States
since April 1979. This was the month in which he first began his employment with Ladmatie, the petitioner's overseas parent company. The
beneficiary was hired overseas expressly to be employed in the United
States as a service engineer. He was never employed in Switzerland by
the petitioner or its parent company. He entered the United States as a
nonimmigrant visitor for business (B 1) on April 11, 1979, to do set up
- -
and repair work, his salary being paid from abroad by the petitioner's
parent firm. On May 20, 1980, the present petition was filed when it
became apparent that the beneficiary's services in the United States
would need to be continued for a longer period of time. Therefore, the
petitioner and its parent firm decided to seek the status of nonimmigrant intro-company transferee (L-1) for the beneficiary.
The employment contract between Ladmatic and the beneficiary was
submitted in support of this petition. It was dated March 28, 1979, and
indicates that the beneficiary was hired as of April 1, 1979, to be sent
directly to the United States to work as a service engineer in setting up
units of machine tools which had been delivered to United States plants
belonging to Ladmatic's customers. The beneficiary was hired to work
in the United States. Thus, it cannot be said that the beneficiary was
employed abroad by the petitioner or its affiliate or subsidiary in any
capacity prior to coming to the United States, notwithstanding that the
present visa petition was not filed until one year after the beneficiary's
employment with the petitioner began and that during this one year the
salary of the beneficiary was sent to him from Switzerland.
The petitioner was unable to comply with the requirement of federal
regulations at 8 C.F.R. 214.2(1)(2) that it submit "a statement describing the capacity in which the beneficiary has been employed abroad"
because the beneficiary had never been employed abroad by this
company. The beneficiary also is not entitled to intra-company transferee (L-1) nonimmigrant classification because by section 101(a)(15)(L)
of the Act the category is reserved for a nonimmigrant alien who,
immediately preceding the time of his application for admission into the United States,
has been employed continuously for one year by a firm . . . or an affiliate or subsidiary
thereof and who seeks to enter the United States temporarily in order to continue to
render his services to the same employer or a subsidiary or affiliate thereof....
The beneficiary applied for admission to the United States as a nonimmigrant visitor for business (B-1) in April 1979. At that time he had not
been employed for one year by Ladmatic. His contemplated application
for change of status is not an application for admission to the United
States such as section 101 (a)(15)(L) refers, rather it is an application for
a change of nonimmigrant status pursuant to section 248 of the Act, 8
U. S. C. 1258.
. It cannot be said that his employment within the United States as a
B-1 nonimmigrant from April 1979, until May 1980, (when this visa
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petition was filed) was one year's qualifying employment within the rule
. of Matter of Continental Grain Co.,
14 I&N Dec. 140
(D.D. 1972). The
beneficiary% employment here certainly was not merely an "intervening"
temporary stay in the .United States which only "interrupts" the 1-
year period of his prior overseas employment, as Continental Grain's
four month training program in the United States did, because the
present beneficiary has had no previous employinent whatsoever with
the petitioner or its Parent firm abroad. I conclude that the petition was
properly denied.
The precedent established in Continental Grain was that the one
year's continuous employment with the petitioner's firm, affiliate or
subsidiary which immediately preceded the beneficiary's application for
admission, must be wholly outside the United States. However, during
portions of that 'one-year period the beneficiary may spend some time in
the United States such as short training periods, conferences, and the
like. The petitioner has not shown that the beneficiary's employment
during the one year which preceded the filing of this petition was actually employment abroad which may have included merely some periods
of employment in the United States.
ORDER: The appeal is dismissed.
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