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Keywords

burden of proofregulationnaturalization
burden of proofregulationnaturalization

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Barsai, Matter of

Facts

The bureau represented The Republic of Transkei, which maintained a Washington D.C. bureau. The government of Transkei appointed the Consul General of the Transkei Consulate in Durban, South Africa, as president of the bureau. The bureau filed a petition with the INS to change the appointee's nonimmigrant classification from B-1 to L-1. The INS denied the petition, stating that the bureau had not established that the beneficiary's duties in the United States would be primarily executive or managerial. The court affirmed this decision.

The bureau represented The Republic of Transkei, which maintained a Washington D.C. bureau. The government of Transkei appointed the Consul General of the Transkei Consulate in Durban, South Africa, as president of the bureau. The bureau filed a petition with the INS to change the appointee's nonimmigrant classification from B-1 to L-1. The INS denied the petition, stating that the bureau had not established that the beneficiary's duties in the United States would be primarily executive or managerial. The court affirmed this decision.

Issue

Did the Bureau establish that the beneficiary's duties in the United States would be primarily executive or managerial in nature to qualify for L-1 status?

Did the Bureau establish that the beneficiary's duties in the United States would be primarily executive or managerial in nature to qualify for L-1 status?

Rule

The Immigration and Naturalization Act and INS regulations define an 'intra-company transferee' as an alien who has been employed abroad continuously for the immediate prior year and who seeks to enter the United States temporarily in a capacity that is managerial, executive, or involves specialized knowledge.

The Immigration and Naturalization Act and INS regulations define an 'intra-company transferee' as an alien who has been employed abroad continuously for the immediate prior year and who seeks to enter the United States temporarily in a capacity that is managerial, executive, or involves specialized knowledge.

Analysis

The court found that the INS had considered the relevant factors and that the Bureau had failed to provide sufficient evidence to demonstrate that the beneficiary's duties would be primarily executive or managerial. The AAU noted that while the Bureau provided letters attesting to the beneficiary's authority, it did not specify the names or duties of persons supervised, nor did it document the proportion of managerial versus non-managerial duties.

The court found that the INS had considered the relevant factors and that the Bureau had failed to provide sufficient evidence to demonstrate that the beneficiary's duties would be primarily executive or managerial. The AAU noted that while the Bureau provided letters attesting to the beneficiary's authority, it did not specify the names or duties of persons supervised, nor did it document the proportion of managerial versus non-managerial duties.

Conclusion

The court affirmed the INS' denial of the Bureau's petition, concluding that the Bureau did not meet its burden of proof to establish that the beneficiary's duties would be primarily executive or managerial.

The court affirmed the INS' denial of the Bureau's petition, concluding that the Bureau did not meet its burden of proof to establish that the beneficiary's duties would be primarily executive or managerial.

Who won?

The Immigration and Naturalization Service (INS) prevailed because the court found that the INS' denial was not arbitrary and capricious and that the Bureau failed to meet its burden of proof.

The Immigration and Naturalization Service (INS) prevailed because the court found that the INS' denial was not arbitrary and capricious and that the Bureau failed to meet its burden of proof.

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