EB1C Multinational Manager. Appeal Denied

H

harrisiqbal

New Member
My case has been going on for more than 2 years so I'm not going to attempt explaining my entire situation as it will take a book worth of writing.

I am in the process of filing MTR for an APPEAL denial. Our original EB1C I-140/I-1485 decision was denied. We appealed the decision and it was denied.

I have a few questions regarding the denial.

Initially they denied the original application on nonsensical fabrications of fact that had nothing to do with our case (Even getting the job title/industry completely wrong).

So we filed an appeal and after more than a year got a denial last week.

In the denial letter they acknowledge their plethora of mistakes but still denied me on two basis.
1 -) Managerial Capacity
2 -) Qualifying Relationship

Regarding the first basis - They again misrepresented the facts and I will address this in the MTR (I'm going to be filing the motion myself, as I don't trust lawyers anymore due to horrible experiences)

The second basis is more of in the realm of point of law as opposed to point of facts (as in the first basis).

In the original denial, they stated that we failed to establish ownership of the foreign company [which is garbage due to the insane amount of evidence presented].
In the denial to the appeal, they say that yes yes we accept that the director might have "overlooked" some facts but that doesnt matter because we have found something that destroys your case (I'm paraphrasing ofcourse).

He continues to say that because the foreign company is a "SOLE PROPRIETORSHIP", a subsidiary / affiliate relationship cannot be established because it is not a "Legal Entity" > and he defines legal entity from this Black Law Dictionary.

Now this is confusing to me. My company has been on L1 visa for a couple of years then has been on the E-2 visa for the last 6 years getting SUCCESSFUL approvals based on this VERY "SOLE PROPRIETORSHIP" with the qualifying relationship being a non-issue. The US Company being a Corporation (with 51%+ of my ownership) and the Foreign company being owned by me 100% as a sole proprietorship.

So how can the officer say that since it is not a legal entity, blah blah, we have to deny you? In the face of numerous USCIS approvals of L1 / E2 ?

Is the officer accurate? My case has no chance because of this not being legal entity thing? Or is the officer mistaken?

If he is mistaken, can you please help me with a citation / or federal case law that I might use to rebut his argument?

Please spare me any comments about, GET A LAWYER!! Because I have TRIED THAT for the last 10 years and it has been less than satisfactory (Yes with multiple lawyers).

I applied for the E-2 extension myself last time and got an approval in 13 days without RFE. So I am going to be doing this myself. If anyone can help me, I will be forever grateful.

Thank You

It just makes me angry to think that, after all that money I have invested in this country and the new employment that I have created, they can throw out my case based on a stupid potential technicality. When there are scores of illegal immigrants swarming this country that get a path to citizenship!!!:mad:
 
Matter of Aphrodite Investments Limited, 17 I&N Dec. 530 (Comm’r 1980) held:

A corporation is a separate entity from its stockholders for the purposes of qualifying an alien beneficiary as an intra-company transferee under section 101(a)(15)(L) of the Immigration and Nationality Act, 8 U.S.C. 1101(a)(15)(L). Cf. Matter of M--, 8 I&N Dec. 24 (BIA 1958; A.G.1958).

Matter of LeBlanc, 13 I&N Dec. 816 (Reg. Comm’r 1971) held:

The statue does not require that the beneficiary of a visa petition to accord nonimmigrant classification as an intra-company transferee under section 101 (a) (15) (L) of the Immigration and Nationality Act, as amended, be coming to an existing office, branch, or other establishment of his employer in order that the petition may be approved. While there may be a question as to whether or not the petitioning company actually has an existing or established affiliate in the United States at this time, where, as the record in the instant case shows, the petitioner has acquired physical premises necessary to its functions here which evidences the bona fides of its operations in this country, the petition may be approved if otherwise approvable.

*****
Given the above, it is clear that one can qualify for an L visa but not qualify for the immigrant visa version of that type of employment. Your personal ownership interest is not an impediment to an L visa but it is to an immigrant visa.
******

The binding precedent decision, Matter of Thornhill, 18 I&N Dec. 34 (Comm'r 1981), holds that a petitioner whose status is impermanent, or otherwise "not settled," is not competent to offer permanent employment to an alien, if that offer would serve as the basis for issuance of an immigrant visa.

Is this at all similar to your case? >>>>>>>>

http://www.uscis.gov/err/B4 - Multi...ecisions_Issued_in_2010/Aug262010_01B4203.pdf

If you have invested sufficient funds and created enough jobs, perhaps you might consider looking into EB-5?
 
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The link you gave is broken. Please can you repost the link?

So you are saying that there is no point of a MTR?

I can't believe this. I spoke with my attorney prior to applying for EB-1C and he never raised this issue. In fact, he clearly outlined my foreign company as a Sole Proprietorship for purposes of establishing an affiliate relationship between the US Corp and Foreign.

So Frustrated.

EB-5 --- $1,000,000 + investment. No can't do that.

And regarding the case you mention (Matter of Thornhill) > How can that be? There are multiple people who expand businesses from other countries to the US in the form of a subsidiary or affiliate, and get approved for I-140/I-1485 even though the company that they open in the US is not "permanent". Is this not correct?
 
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BigJoe5 said:
Matter of Aphrodite Investments Limited, 17 I&N Dec. 530 (Comm’r 1980) held:

A corporation is a separate entity from its stockholders for the purposes of qualifying an alien beneficiary as an intra-company transferee under section 101(a)(15)(L) of the Immigration and Nationality Act, 8 U.S.C. 1101(a)(15)(L). Cf. Matter of M--, 8 I&N Dec. 24 (BIA 1958; A.G.1958).

Matter of LeBlanc, 13 I&N Dec. 816 (Reg. Comm’r 1971) held:

The statue does not require that the beneficiary of a visa petition to accord nonimmigrant classification as an intra-company transferee under section 101 (a) (15) (L) of the Immigration and Nationality Act, as amended, be coming to an existing office, branch, or other establishment of his employer in order that the petition may be approved. While there may be a question as to whether or not the petitioning company actually has an existing or established affiliate in the United States at this time, where, as the record in the instant case shows, the petitioner has acquired physical premises necessary to its functions here which evidences the bona fides of its operations in this country, the petition may be approved if otherwise approvable.

*****
Given the above, it is clear that one can qualify for an L visa but not qualify for the immigrant visa version of that type of employment. Your personal ownership interest is not an impediment to an L visa but it is to an immigrant visa.
******

The binding precedent decision, Matter of Thornhill, 18 I&N Dec. 34 (Comm'r 1981), holds that a petitioner whose status is impermanent, or otherwise "not settled," is not competent to offer permanent employment to an alien, if that offer would serve as the basis for issuance of an immigrant visa.

Is this at all similar to your case? >>>>>>>>

http://www.uscis.gov/err/B4 - Multi...ecisions_Issued_in_2010/Aug262010_01B4203.pdf

If you have invested sufficient funds and created enough jobs, perhaps you might consider looking into EB-5?
Click to expand...

I swaped the link.
 
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