The Administrative Appeals Office (AAO) has appellate jurisdiction over United States Citizen and Immigration Service (USCIS) regional centers and district offices. The decisions of the AAO provide legally sound holdings for disputes involving immigrant and nonimmigrant petitions and applications entered into the USCIS centers. AAO holdings serve as precedent for interpretation of immigration laws, regulations, and policy in the adjudication process of petitions and application by all involved parties including beneficiaries, applicants, attorneys and government officials.  In the past year, Robert C. Divine, Acting Deputy Director of the USCIS, issued the following AAO decisions with a memo stating that these decisions are binding policy guidance on all USCIS personnel.

Authorized admission for H-1B Status and L-1 Status Applies Only to Time Spent Lawfully in the US

In September 2005, the AAO sustained the appeal of a beneficiary who asked for a 30 day extension of H-1B status.  The USCIS denied the petition on the grounds that the beneficiary had already been employed in the US for six years, the maximum time period allowed under the status classification. In addition, the USCIS found that the 30 day period the beneficiary spent out of the US while on business for the US employer just prior to the expiration of the six-year H-1B status did not interrupt the beneficiary’s employment and did not entitle the beneficiary to an additional 30 days in H-1B status.  The AAO looked at statutory language and determined that time spent outside of the US interrupts the accrual time in H-1B status thus entitling the beneficiary to an 30 day extension.

The AAO looked at statutory language and the pertinent regulations to determine whether or not the accrual of time spent in H-1B status is interrupted by brief trips out of the US .  According to Section 101(a)(13)(A) of the Immigration & Nationality Act (INA), the term “admission” means time an alien is admitted in the US lawfully after inspection and authorization by an immigration officer.  Under the relevant regulation, 8 C.F.R § 214.2(h)(13)(iii)(A), an alien in a specialty occupation with H-1B status who has spent six years in the United States may not seek to extend status.  The USCIS director held this language to mean that to recapture time spent outside of the US , that time must be interruptive of the qualifying employment.  The AAO disagreed with the USCIS director who denied the extension of status on the basis that the time spent out of the US did not interrupt the H-1B status qualifying employment.  The AAO stated that in accordance with the statute and the regulations, only time spent inside the US after being lawfully admitted can be counted toward the maximum period of stay under H-1B status. Therefore, the beneficiary was not in status for US immigration purposes while outside of the US .  This means that the H-1B status was interrupted when the beneficiary left the US and the H-1B status was renewed when the beneficiary reentered lawfully.   The AAO added that this holding pertaining to “periods of authorized admission” also applies to L-1 status as found in the statute INA §214(c)(2)(D).

Additionally, the AAO noted that the beneficiary is in the best position to provide evidence of departures and reentries into the US .  Thus, to recapture time spent out of the US for H-1B status and L-1 status, the beneficiary must provide supporting documentation such as I-94 forms and copies of visa entry and exit stamps from passports.

A Deniable Petition Cannot Serve As A Basis For Approval For An Adjustment of Status to Permanent Residence Under the Portability Provision of INA § 204(j)

In January 2005, the AAO determined whether or not the American Competitiveness Act in the Twenty-First Century Act (AC21), passed by Congress in 2000, amended the INA to allow the approval of adjustment of status to permanent residence applications merely because an application for adjustment of status pursuant to section 245 had been filed and remained unadjudicated for over 180 days.  The AAO looked closely at the statutory scheme for adjustment of status both before and after enactment of AC21, as well as the statutory language and Congressional intent, and determined that a petition must be valid, and not deniable, for approval of the adjustment of status application even if the  adjustment remained unadjudicated over 180 days. The AAO found the initial petition filed by the applicant in the present matter was not valid for the purposes of AC21 and new job offer alone could not support the support the adjustment of status application even though the application remained unadjudicated for over 180 days.

In the present matter, the petitioner filed an employment based immigrant petition on behalf of an alien who was not entitled to the classification, but claimed entitlement based a new job offer citing section 204(j) of the INA. The applicant in the matter sought to adjust status despite never having shown eligibility for the immigrant visa classification sought.  The USCIS denied Form I-140 petitions filed by employers on behalf of the applicant on two separate occasions.  The applicant, despite the USCIS director’s denial of the visa petition filed by the applicant’s actual employer, claimed he was entitled to adjustment of status based on a new employment offer under section 204 of the INA amended by AC21 section 106(c) which allows job flexibility for long delayed applicants if the new job is in the same or similar occupation classification for which the petition was filed.

To decide this issue, the AAO first looked at the regulations for applications for permanent residence based on employment at the time of enactment of AC21 and noted three procedural steps. First, the alien obtains approval for an employee-based immigrant petition. Secondly, the alien files an application to adjust status, and finally, if the adjustment application remains unadjudicated after 180 days, the underlying visa petition remains valid even if the alien changed employers or positions so long as the new job was the same or similar to the occupational classification. AC21 works in tandem with section 245 of the INA which requires that the adjustment applicant to have an "approved" immigrant visa petition.  The AAO pointed out that the problematic issues at hand result from the concurrent filing process implemented by the USCIS in 2002 for the convenience of aliens and their employers.  The concurrent filing process allows the employer-petitioner and alien-beneficiary to file the I-140 immigrant petition and the I-485 adjustment of status application concurrently. However, at the time AC21 was enacted, only family based preference cases could be filed concurrently.  Therefore, no alien under the employment based category could assert that a petition was valid through the passage of 180 days at that time because the process required that the immigrant petition be approved before filing the I-485 for adjustment. Thus, the AAO reasoned that the scheme implemented by Congress regulating the immigrant visas in threefold process cannot be undone simply because the scheme requires more than 180 days to effectuate.

The AAO then looked at the statutory language and committee reports to determine Congressional intent for passing AC21 and to decide if adjustment of status applications pending for over 180 days should be automatically approved. The operative language with respect to the issue in question can be found in section 106(c) of AC21 which states that a , “A petition…shall remain valid with respect to a new job if the individual changes jobs or employers…”  Counsel for the applicant argued that Congress enacted AC21 to reduce backlogs of adjustment of status applications and to improve the affects that these backlogs have on applicants.  Since the AAO found no legislative history that supported this argument, and discovered the committee reports specifically addressed immigrant visa petitions and not adjustment of status applications, the argument for the applicant was unpersuasive.  Instead, the AAO put more weight on the ordinary meaning of the word “valid” which must be interpreted using its ordinary meaning and not by attempting to effect legislative intent.  The ordinary meaning of “valid” is “well-grounded” or “legally sound or effective” and does not include denied or unadjudicated petitions as applicant’s Counsel suggested. Contrary to Counsel’s argument, an application is not made “valid” simply through the act of filing and the passage of 180 days without adjudication. 

As for the portability issues arising under section 204(j) of the INA which provides that a petition remains valid with respect to a new job if the individual’s application for adjustment of status has been filed and remained unadjudicated for 180 days, the petition must be valid to begin with if it is to be valid with respect to the a new job. In the instant case, the petition was not valid to begin with so the USCIS decision to deny the adjustment of status application was affirmed.

A Publicly Held Corporation May Be Deemed American for Immigration Purposes

 If the Corporation ss Incorporated in the US and Trades its Stock Exclusively on US Stock Exchange Markets

The AAO decided in January 2006 the Matter of Chawathe involving several issues related to the preservation of residence for naturalization purposes under section 316(b) of the INA  providing that an absence from the US for a continuous period of one year or more shall break continuity or residence. The Applicant, an employee of ChevronTexaco Corporation with immigrant status as an alien of exceptional ability, filed an Application to Preserve Resident Status (Form N-470).  The USCIS director determined that the applicant failed to establish that the employer was an American firm, that his temporary overseas assignment with a subsidiary of employer interrupted his residence and denied the application.  The AAO overturned the USCIS decision and held that if the applicant can establish by the preponderance of the evidence that the employer is incorporated in the US and trades stock exclusively in US stock markets, then the employer is an American firm and that the reasoning for this standard can be applied in determining the nationality of a publicly traded foreign corporation where such a determination is required so long as it is not in conflict with existing laws and regulations for the classification sought.  The AAO also discussed in this case burden of proof issues to remind parties of the distinction between burden of proof and standard of proof requirements when preparing for and adjudicating petitions and applications.

First, in regards to the nationality issues, the AAO looked at the principles of determining nationality of a corporation set forth in Matter of Warrach, 17 I & N Dec. 285, 286-87 (Reg. Comm. 1979) principles for nationality determination used by US Department of State (DOS).  Under Warrach principles, incorporation in a US state does not establish nationality of a firm or corporation. Rather an applicant must also establish that the firm or corporation is more than 50% owned by persons who are US citizens.  The AAO discussed that the Warrach principle does not take into account the difficulties of tracing ownership and nationality of the owners of the stock of a publicly-held corporation that has thousands of stock holders. Additionally,  perhaps billions of stocks of a particular corporation are distributed and subject to sale on a daily basis. In deciding that the Warrach principles for determining nationality were impracticable for a publicly-held corporation, the AAO looked to the (DOS) definition of nationality for nonimmigrant treaty trader and investor purposes in Volume 9 of the Foreign Affairs Manual, 9 FAM 41.51 N3.2.  According to the manual definition, nationality of a corporation is determined by the location of the exchange. The manual continues that in the case of corporations with stock trades in multiple locations, applicants must satisfy the consular officer by the best evidence that the corporation meets the nationality requirement.  Under both Warrach and DOS principles, nationality is not satisfied by the incorporation location alone.  Therefore, given the difficulty of tracing ownership of publicly held sticks, the AAO held that it is reasonable to presume that a publicly held corporation meets the definition of an “American firm” if incorporated in the US and whose stock is exclusively sold on US stock exchange markets.

The AAO looked at the evidence provided by the applicant to demonstrate the American nationality of the employer and to prove that the overseas employer is a subsidiary of the US employer.  The AAO distinguished the burden of proof from the standard of proof at issue.  For administrative immigration proceedings, the applicant must show by the preponderance of the evidence that the applicant is eligible for the benefit sought.  Thus, even if the USCIS has some doubt of the truth, where the applicant provides relevant, probative, and credible evidence that leads the USCIS director to believe the claim is “probably true” or more likely than not”, the applicant has met the standard of proof. Matter of E-M-, 20 I&N Dec. 77, 79-80 (Comm. 1989).  Where the USCIS director can articulate a material doubt, the officer may request additional evidence. If the doubt leads the officer to believe that the claim is probably not true, the USCIS may deny the application.  In the instant case, the applicant met the burden of proof and demonstrated that the employer is an American corporation and sufficient evidence was provided by the evidence, meeting the standard of proof, thereby demonstrating that the overseas employer is a subsidiary.  For these reasons, the AAO sustained the appeal to the denial of Application to Preserve Resident Status.

Conclusion

As previously mentioned, Deputy Director Divine issued these AAO decisions with orders to all USCIS personnel that these decisions are binding on the adjudication of applications and petitions involving the same issues.  Therefore practitioners, applicants, petitioners, and certainly USCIS personnel  must use these decisions for authority and guidance in the preparation of petitions and applications involving H-1B status authorized admission periods, issues for adjustment of status applications filed concurrently with immigrant petitions pending for over 180 days, and the determination of nationality of a publicly-held corporations for immigration purposes.  Additionally, the Chawathe decision provides further assurance of the evidentiary requirements for such applications.