Interim Decision #3013
MATTER OF A. DOW STEAM SPECIALITIES, LTD.
In Visa Petition Proceedings
A-27221735
Decided by Commissioner May 21, 1986
In occupational preference visa petition proceedings a petitioner, having no location in the United States, is not an employer and, therefore, cannot offer to permanently employ an alien in the United States. Only a U.S.-based branch office, affiliate, or subsidiary of the foreign organization may file such a petition.
ON BEHALF OF PETITIONER. Gene S_ nevnre, Esquire
2161 Palm Beach Lakes Blvd.
Suite 301
West Palm Beach, Florida 33409
The petition was denied by the district director, Miami, Florida,
and is now before the Commissioner on appeal.
The petitioner in this matter is a Canadian corporation which
supplies equipment and provides consulting services for the efficient use of energy. The beneficiary is presently employed in the
United States by the petitioner's wholly owned Florida subsidiary,
Palm Beach Engineering Specialities, Inc., as its president. A petition to Classify Nonimmigrant as Temporary Worker or Trainee
(Form I 129B) under section. 101(a)(15)(L) of the Immigration and
-
Nationality Act, 8 U.S.C. § 1101(a)(15)(L) (1982), was previously filed
by the Florida corporation and approved on the beneficiary's bebalf
on April 8, 1982, for a 3-year period. The beneficiary was then admitted to the United States as an intracompany transferee. The
Canadian corporation now seeks to accord the beneficiary sixth-preference classification in order that he may later become permanently employed with the Florida Corporation. Eligibility for labor
certification is claimed under
20 C.F.R. § 656.10(d) (1986) commonly
referred to as Schedule A, Group W.
The district director held that even though the Canadian and
Florida corporations are affiliated, the petitioner cannot offer permanent employment in the United States because its offices are located in Canada and the corporations are two separate entities. In
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Interim Decision # 3013
support of his decision, the district director cited Matter of Sun, 12
I&N Dec. 800 (B.C. 1968), and Matter of Thornhill,
18 I&N Dec. 34
(Comm. 1981).
Counsel argues on appeal that the petitioner has satisfied the requirements of section 203(a)(6) of the Act,
8 U.S.C. § 1152 (1982).
In Matter of Sun, supra, the regional commissioner held that a
sixth-preference visa petition, filed by a petitioner who was an
alien against whom an order of deportation was outstanding, was
not approvable because the status of the petitioner was not settled
or stabilized. Consequently, the offer of employment, which was
without any basis of permanency, failed to meet the requirement of
section 203(a)(6) of the Act that it be "not of a temporary or seasonal nature."
In Matter of Thornhill, supra, the Commissioner held that a petitioner, who was an alien in an authorized nonimmigrant temporary worker classification, was not competent to create a job offer
for the permanent employment of another alien because the petitioner's status was temporary in nature, regal dless of the fact that
he intended to apply for permanent residence sometime in the
future.
Here, the petitioner is not an individual without. permanent
status in the United States; it is an organization without status in
the United States. The petitioner has not been shown to be doing
business in the United States. Rather, its subsidiary, Palm Beach
Engineering Specialities, Inc., presently employs the beneficiary
and conducts business in the United States. It is concluded, therefore, that while Palm Beach Engineering may offer the beneficiary
p ermanent employment in the United States, the foreign based pe-
-
titioner may not.
It is noted that the record does not otherwise establish the eligibility of Palm Beach Engineering as a petitioner. For example, its
financial solvency has not been demonstrated. Accordingly, we will
dismiss this appeal without prejudice to the submission of a new
petition by Palm Beach Engineering, accompanied by the requisite
supporting documentation.
ORDER: The appeal is dismissed.
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