ISOVIC

                                                               Interim Decision #2933




                                  MATTER OF ISOVIC

                            In Visa Petition Proceedings
                                      LOS-N-45355
                    Decided by Commissioner June 6, 1982

 (1)A petitioner seeking to classify an alien under section 101(a)(15)(L) of the Immigration
   and Nationality Act, 8 U.S.C. 1101(a)(15)(L), must demonstrate the intention to employ
   the beneficiary in the United States for only a temporary period.
 (2) While a petitioner for an L classification generally need submit only a simple statement
   of the facts and a listing of dates to demonstrate the intent to employ the beneficiary
   in the United Staten temporarily, where the beneficiary in the owner/major atockholdei
   of the petitioning company, a greater degree of proof is required.
 ON BEHALF OF PETITIONER: Robert L. Miller, Esquire
                       Miller and Miller
                       2500 Wilshire Boulevard
                       Suite 1019
                       Los Angeles, California 90057


  This matter is before the Commissioner upon certification in accordance with 8 C.F.R. 103.4. The petition was denied by the District
Director. An appeal to the Regional Commissioner was dismissed on
November 25, 1981.
    The petitioner, Bis-Shaefer Corporation, seeks to classify the benefi-
. ciary, Midhat Isovic, as an intra-company transferee. The petitioner is
 incorporated in the state of California to conduct a heavy construction
 business and the import and export of electronic apparatus. A 51%
 share of the petitioning corporation is owned •by the beneficiary. The
.beneficiary's presence in the United States is sought to manage and
 direct the corporation's activities in the United States. Evidence has
 been submitted that the beneficiary was employed abroad for more than
 one year by the Shaefer Company Ltd., of Munich, Germany, and by
 the BIS Company, also of Munich, Germany. Evidence demonstrates
 that the overseas companies are affiliated with the petitioner inasmuch
 as they are under the common ownership and control of the beneficiary
 and that the beneficiary was substantially involved in management and
 executive duties for the overseas companies for the requisite one year
 or more. Both overseas "affiliates" are incorporated in Germany. '

                                           361
Interim Decision #2933

  In Matter of Tessel, Inc., 

 (A.C. 1981), the Service
determined that a corporation and its stockholders are separate legal
entities and that a corporation can employ and petition for a stockholder.
   The Regional Commissioner concedes that the petitioner has established the foregoing facts, but in his decision of December 8, 1981, found
that the petitioner had failed to establish that the beneficiary was coming to the United States temporarily and, therefore, the beneficiary was
not entitled to classification as an intra-company transferee. The petitioner argues that section 101(a)(15)(L) of the Immigration and - Nationality Act, as amended, 8 U.S.C. 1101(a)(15)(L), does not require the
petitioner to establish that a beneficiary is coming temporarily, and that
the temporariness of a beneficiary's stay is an issue which may be considered only in conjunction with an application for visa issuance before a
United States consular officer. The petitioner, through counsel, also
argues that the Regional Commissioner has inappropriately imposed
the requirement that the services required of the beneficiary be of a
temporary nature. The petitioner correctly comments that the temporariness of an occupational position is a statutory requisite for classifying a temporary worker under section 101(a)(15)(H)(ii) of the Act.
   Section 101(a)(15)(L) of the Act provides for the classification and
admission of an intra-company transferee as follows:
  (I.) an 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 corporation
 or other legal entity 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 in a capacity that is managerial, executive,
 or involves specialized knowledge, and the alien spouse and minor children of any such
 alien if accompanying him or following to join him.
   Title 8, Code of Federal Regulations 214.2(1)(1) provides that, "A
petition approved under this paragraph is valid for the period of established need for the beneficiary's temporary services, but not to exceed
three years." Service Operations Instruction 214.2(1) provides that, "A
petitioner for an L-1 nonimmigiant must establish that he is seeking
such classification for the beneficiary to enable the latter to enter temporarily to perform specified services."
   The same Operations Instruction provides that the beneficiary's intent
With regard to the temporariness of his proposed stay in the United
States is pertinent primarily to the beneficiary's eligibility for issuance
of an L 1 visa and his admission to the United States as a nonimmigrant.
        -


   In the foregoing discussion and references, the concept of "temporariness" has two separate applications: the intent of the alien beneficiary to enter temporarily, and the intent of the employer to use the
beneficiary's services temporarily. The Service has long held that the
intent of the beneficiary is not relevant in a nonimmigrant visa petition
proceeding. Matter of University of Oklahoma, 

 (R.C.

                                        • 362
                                                   Interim Decision #2933
1972). In this context, temporariness relates to the alien's eligibility for
classification as a nonimmigrant and is to be considered in the visa
issuance process or at the time of his application for admission to the
United States. The intention of the petitioning employer to use a beneficiary temporarily or permanently, however, does relate to the nonimmigrant visa petition process for temporary workers under either the "H"
or "L" nonimmigrant categories. Sections 101(a)(15)(H) and (L) clearly
state that the beneficiary must be coming temporarily. Matter of Lee,

 (R.C. 1981).
   In this proceeding, the Regional Commissioner saw these two separate applications of "temporary" but did not clearly express them. His
use of the phrases "temporary nature of services" and "services needed
only on a temporary basis" are not correct in this context. The requirement that a job-or occupation be of a temporary nature relates to the
statutory requirement fox the "11-2" temporary nonimmigrant worker
section 101(a)(15)(H)(ii) and not to sections 101(a)(15)(H)(i) or (L). The
Regional Commissioner also improperly cited Hess v. Esperdy, 234 F.
Stipp. 909 (S.D.N.Y. 1964). That decision again relates to the "11 2"    -


temporary worker claisification and not to the intra-company transferee (L-1). The issues which must be satisfied in the present proceeding are not the intent of the beneficiary nor whether the occupational
position requires services of a temporary nature. The issue is whether
or not the petitioner will employ the beneficiary for a limited period of
time. It is irrelevant to the "L-1" classification whether the occupation
is temporary or permanent, so long as the alien beneficiary will only be
utilized for a temporary period.
   The Regional Commissioner has raised a valid question in the instance
of a corporate enterprise which is essentially owned by the alien beneficiary who is engaged as the principal manager or executive: Does the
petitioner an,d corporate entity intend to employ the beneficiary permanently in the position for which it is petitioning? I do not agree with the
Regional Commissioner that this question must be answered in the
affirmative to the effect that the permanent presence and employment
of a principal stockholder and beneficiary is automatically indicated in
all cases. Nonetheless, the question must be asked and the petitioner
must be given an opportunity to establish whether it is the petitioner's
intention to employ the beneficiary for only a temporary period in the
United States. Although the intentions of the alien beneficiary and of
the company's stockholder appear to merge in this situation, the legal
fiction of corporate identity separate from the stockholders must be
maintained.
   The petitioner, through counsel, was requested to furnish evidence
and information concerning whether or not the beneficiary will be
employed temporarily. The specific information sought included the

                                    363
Interim Decision #2933

following:
  (1) a description of the petitioner's/beneficiary's other business activities and/or investments, if any; (2) the petitioner's statement concerning how long the beneficiary's
  services will be required in the United States; (3) what provisions, if any, have been
  made to operate the business when the beneficiary returns abroad; and (4) whether or
  not the Bis-Shaefer Corporation plans• to permanently or indefinitely operate in the
  United States.
  The petitioner's reply, through counsel, reaffirmed that the petitioner
intended to employ the beneficiary temporarily but provided few
specifics. No information is available here as to whether or not the
overseas affiliates will continue in operation and whether or not these
activities will cause the beneficiary to travel abroad. Counsel states
that, "It is impossible to have any provisions to operate the business
when the beneficiary returns abroad." Counsel also states that if the
company is successful, "it will operate indefinitely."
  Because of the indefinite character of the business which requires
careful corporate planning of long-term contingencies, the fadt that the
operation and, indeed, (.he very esistenm of the business depends upon
the presence of the ownerloperator/stockholder, and the fact that no
evidence or information has been offered to show that the employment
will be of limited duration, I must conclude that the petitioner has failed
to establish that it is seeking L-1 nonimmigrant classification to enable
the beneficiary to enter the United States temporarily to perform the
specified services.
   This finding, however, should not be construed as prohibiting a corporation owned wholly or primarily by one individual from bringing to the
United States the owner/operator under the "L-l" visa classification. .
This can be accomplished if the petitioner demonstrates its intention to
employ the beneficiary temporarily and can show that the temporary
services of the owner/operator will no longer be utilized at some future
date. It can be further evidenced by demonstrating that the operating
company will exist only for a finite period in the United States or that
the owner's/operator's investments and enterprises abroad are such
in an likelihood he will not be employed and present in the United States
for indefinite periods of time, but will return to manage the other
investments.
   While the Service has generally accepted that the burden of proving
the temporary utilization of a beneficiary's services is met through a
simple statement of the facts and listing of dates, the circumstances
involved in a petition for an owner/operator require a greater degree of
proof beyond a mere on-record statement. The form of this proof is the
responsibility of the petitioner. However, it is suggested that evidence
 establishing a record of corporate transfers, relocation of high level                  -


 personnel, or anticipated future events which will affect the reassign-


                                             364
                                               Interim Decision #2933

went of the owner/operator outside of the United States, will normally
meet the petitioner's burden of proof.
  ORDER The petition is denied.




                               _ 365