Matter of Michelin Tire Corporation

employer or subsidiary or affiliate thereof in a capacity that is managerial, or execu- tive or involves specialized knowledge, ..." The petition was denied on the basis that at the time of filing the petition, the beneficiary had not been employed by the petitioner for the required period of one year, and, that the knowledge possessed by the beneficiary was general knowledge, rather than the specialized knowledge contemplated by the statute. On appeal, it is pointed out that during the start -up period for a new plant, it was necessary to bring temporarily a large number of French employees from their subsidiary in that country, and in order that their children will not suffer an educational set-back upon return to France, a teacher graduated from the French Educational System is required. It is also pointed out that by the time the beneficiary com- mences her employment here, she will have the required 1 year of experience. According to the information contained on the nonimmigrant visa petition, at the time of filing the petition with the Service, the benefici- ary had approximately 9 months of employment with the petitioning firm- This does not meet the statutory requirement of the beneficiary having been employed continuously for 1 year immediately preceding the time of application for admission. In Matter of Katigbak, 14 I&N Dec. 45 (R.C. 1971), although an immigrant visa petition case, it was held that the beneficiary must be qualified at the time of filing the visa petition. In view of the language of section 101(a) (15)(L) of the Act, it must be concluded that the intra-company transferee must likewise have the required 1 year of experience at the time of filing the nonim- migrant petition in her behalf. The remaining issue to be decided is whether or not the beneficiary would be employed in a capacity which "involves specialized knowledge." A review of available published precedent decisions has not disclosed a case ruling on the issue presented by the District Director. It is necessary, therefore, to turn to the legislative history. H.R. 851, 91st Congress, 1st Session, by the Committee on the Judici- ary, cited the broad purposes of the then-proposed legislation, subse- quently enacted as section 101(a)(15)(L) of the Act. On page 3 of that Report, there is stated: "The testimony of witnesses clearly establishes that existing law restricts and inhib- its the ability of international companies to bring into the United States foreign nationals with management, professional, and specialist skills and thereby enable Ant erican business to maintain and improve the management effectiveness of interna- tional companies to expand U. S. exports and to be competitive in overseas markets. Existing nonimmigrant provisinne of the Immigration and Nationality Act offer little or no relief in the transfer of executive personnel since such entries are also limited to specific positions which are temporary in nature. Consequently, visas must be denied to alien executive personnel who are transferred to the United States to continue

雇主或其子公司或关联公司，以管理、行政或涉及专业知识身份……" 该申请被拒，理由是提交申请时，受益人尚未受雇于申请人达到所要求的1年期限，且受益人所拥有的知识为一般知识，而非法规所设想的专业知识。 在上诉中，指出在新工厂的启动期间，有必要暂时从该国的子公司带来大量法国雇员，并且为了使他们的子女在返回法国时不至于在学业上落后，需要一名毕业于法国教育体系的教师。还指出，到受益人开始在此地受雇时，她将具备所要求的1年经验。 根据非移民签证申请中所含信息，在向移民局提交申请时，受益人已在申请公司受雇约9个月——这不符合法规要求，即受益人在申请入境时紧接之前的1年内须连续受雇。在Matter of Katigbak, 14 I&N Dec. 45 (R.C. 1971)中，尽管是移民签证申请案件，但裁定受益人必须在提交签证申请时具备资格。鉴于该法第101(a)(15)(L)条的措辞，必须得出结论：公司内部调任人员同样必须在为其提交非移民申请时具备所要求的1年经验。 尚待决定的其余问题是，受益人是否将以"涉及专业知识"的身份受雇。对可获得的已公布先例裁决的审查未发现就地区主任所提出的问题作出裁决的案件。因此，有必要转向立法历史。H.R. 851，第91届国会，第1会期，由司法委员会提交，引述了当时拟议立法（后颁布为该法第101(a)(15)(L)条）的广泛目的。该报告第3页指出： "证人的证词清楚表明，现行法律限制并阻碍国际公司将具有管理、专业和专家技能的外国国民带入美国，从而使美国企业能够维持和提高国际公司的管理效力，以扩大美国出口并在海外市场具有竞争力。现行《移民和国籍法》的非移民条款对行政人员的调任提供很少或没有救济，因为此类入境也限于临时性质的特定职位。因此，必须拒绝向调任美国以继续

Interim Decision #2758

临时决定第2758号

employment with a domestic corporation or firm, or a domestic affiliate or subsidiary of a foreign corporation. This interchange of personnel is important since it an opportunity for an individual to advance within the worldwide organizations without regard to nationality, it enables foreign nationals to learn American management techniques by placing them in key positions in the United States and thus more> effectively manage the affiliate opera- tions in the U. S. companies when they return overseas. Experience has demonstrated that a real contribution in the conduct of international business results from the cross-fertilization of ideas through the use of special skills of personnel of different nationalities." Page 5 of the report added: "This amendment would help eliminate problems now faced by American companies having offices abroad in transferring key personnel freely within the organization. This proposal would meet the objective of American industry which has been seriously hampered in transferring personnel, particularly from Canada. Testimony before the committee established that the present immigration law and its administration have restricted the exchange and development of managerial person- nel from other nations vital to American companies competing in modern-day world trade. Executives of American companies detailed for assignments in foreign branch offices, or subsidiaries and affiliate companies abroad, find little difficulty in being admitted to foreign countries - as noninmmigrants_for duty tours of several years duration. Such intra-company transfers have contributed immeasurably to the growth of American enterprise throughout the world and to the international trade of the United States.".. In the ease before me, the beneficiary is a graduate teacher trained in the French Educational System. She is qualified by experience to continue the French-required system of education here in the United States. According to the petitioner, such education is necessary in order that the children of their French employees will not retrogress in their studies upon their return to France. In a sense, the beneficiary can be said to possess a specialized knowledge, that of the require- ments of the educational system in France. The educational opportunities offered by the petitioner to its French employees is a fringe benefit, offered to induce certain foreign em- ployees to come to the United States temporarily. This inducement is not concerned with the expansion of commerce, or with the movement of key personnel within an international corporation, as cited in the House Report, supra. The specialized knowledge required by the stat- ute must directly concern the expansion of commerce or it must allow an American business to be competitive in overseas markets. Such an interpretation, I believe, is consistent with the purpose and intent of this legislation. Accordingly, I find that the proposed employment does not meet the statutory requirement of specialized knowledge, and the decision of the District Director was correct and proper. ORDER* The decision of the District Director is affirmed, and the appeal is dismissed.

在国内公司或商号、或外国公司的国内关联机构或子公司任职的外国执行人员发放签证。 这种人员交流很重要，因为它为个人提供了在世界性组织内晋升的机会而不论国籍，使外国国民能够通过在美国担任关键职位学习美国管理技术，从而在返回海外时更有效地管理美国公司中的关联机构业务。经验表明，通过利用不同国籍人员的特殊技能实现思想交融，对国际业务的开展产生了真正的贡献。” 该报告第5页补充道： “本修正案将有助于消除美国公司在海外设有办事处时在组织内自由调任关键人员所面临的问题。本提案将实现美国工业的目标，美国工业在调任人员方面一直受到严重阻碍，尤其是从加拿大调任人员。 委员会面前的证词表明，现行移民法及其执行限制了其他国家管理人员的交流和发展，而这些对美国公司在现代世界贸易中的竞争至关重要。美国公司被派往外国分支机构、或海外子公司和关联公司任职的执行人员，在获准进入外国——作为非移民——进行为期数年的任期方面几乎没有困难。此类公司内部调任对美国企业在世界各地的增长以及美国的国际贸易作出了不可估量的贡献。” 在我面前的案件中，受益人是受过法国教育体系培训的毕业教师。她具备经验资格，可以在美国继续法国所要求的教育体系。据申请人称，这种教育是必要的，以便其法国员工的子女在返回法国时学业不会退步。在某种意义上，可以说受益人拥有专业知识，即法国教育体系要求方面的知识。 申请人向其法国员工提供的教育机会是一种附加福利，旨在诱使某些外国员工临时来美国。这种诱因与商业扩展无关，也与上述众议院报告中所引述的国际公司内关键人员的流动无关。法规所要求的专业知识必须直接涉及商业扩展，或者必须使美国企业能够在海外市场具有竞争力。我认为，这种解释符合本立法的目的和意图。因此，我认定拟议的雇用不符合专业知识的法定要求，地区主任的决定是正确的和适当的。 命令：地区主任的决定予以维持，上诉予以驳回。