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L-1A Guidelines Clarified, USCIS Gets Reprimanded

The Administrative Appeals Office (“AAO”), where USCIS decisions get appealed, gave a decision that not only clarified the standards for approving L-1A visas, but also reprimanded USCIS for constantly applying a more difficult and incorrect standard. This is a a positive development for the L-1A petitioner in the case, and the strong language of the opinion should shape the law for future petitioners and beneficiaries to come.

The clarification specifically was for properly applying the law for new office Executives and Managers seeking an extension of status beyond the initial one year. Normally, the AAO simply reverses USCIS and remands the matter. This opinion went one step further and approved the extension request without remand.

The case involved a newly formed US corporation (Petitioner) that was the wholly owned subsidiary of a Japanese parent company involved in packaging for the food, beverage, and pharmaceutical industries. The Petitioner was created to test the North and South American markets for manufacture, import, distribution and sale of its products. USCIS’ California Service Center (CSC) denied the extension, stating that the structure of the US company made approval impossible; the US company’s structure solely involved the beneficiary and two full-time US workers. The CSC did not even consider evidence submitted on several other issues to support approval.

Many small organizations face the issue of demonstrating eligibility for a L-1 visa that requires the company to show that the foreign national will either supervise over a team of executives and managers; or will manage a function or division within the company. Small organizations do not have the need to hire a large staff, especially when we have lean and efficient ways to do business like contracting to outside suppliers, working out of a shared office space, and others. AAO held that CSC erred by omitting to consider the fact that the beneficiary actually managed a larger team of workers/suppliers/vendors besides the two US employees.

The AAO clarified the correct standard. First, the AAO described that when examining the executive or managerial capacity of the beneficiary, USCIS should, inter alia, to the description of the job duties in the broader context of the facts and circumstances of the case

In addition, the AAO clarified that the petitioner need only establish that the beneficiary devoted more than half of his time to managerial duties.

As this decision demonstrates, even USCIS can get the law wrong on occasion. It is up to expert attorneys and their well-researched arguments in order to set the law straight, or at least work within USCIS’ interpretation of the law even if erroneous. Even before the AAO’s decision, attorney Sweta Khandelwal had successfully argued that small companies have different business requirements and may be eligible for an L-1A visa even though they have limited hiring needs in the US.Contact our office if you need assistance with your L-1A case or any other immigration issues today.

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Intermittent Employees and I-9 Issues

Occasionally, a company requires an intermittent employee to complete a certain project or goal. A foreign national on an H-1B or L-1 visa may be employed in the US for a short period of time. . Regardless of how long a particular employee stays or how often they come in and out of the United States, an employee in the United States must comply with I-9 requirements, , even if they are paid by a foreign employer. More details on the I-9 process can be found here

An employer must ensure, at a minimum, that Section 2 of Form I-9 is completed within three days of the employee commencing employment. Sometimes an overseas employee may enter the US for the limited duration of a project and leave US without completing the I-9 Form. In such a situation, the employee must complete the Form I-9 upon their next arrival in the United States. However, this does not always cure the violation; the employer may find themselves in trouble with E-Verify standards.

A common misconception by employers is that rules/laws regarding worksite compliance do not apply to foreign employees. This is not true. Although for an employee on a foreign payroll the missing Form I-9 may not come up in an I-9 audit, the Immigration and Customs Enforcement may find it in their own audit; or if company tax records are scrutinized.

On a separate note, complying with the IRS tax requirements for both the employer and employee can be a very complicated process, requiring an analysis of the employee’s primary residence, the days spent in the United States, current income tax guidelines, the employee’s income, and other factors. It is imperative to check with a CPA.

Having a foreign employee work in the US requires the assistance of an expert immigration attorney, irrespective of the duration of employment in the US. Contact our office if you need assistance with hiring a foreign employee, I-9 compliance, or any other immigration issues.

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Showcase Series: L-1A Visa for Chief Executive Officer Opening a New Office

This is the second installment of our new Showcase Series, which will overview successful cases filed by Mrs. Sweta Khandelwal, the principal attorney at the Law Offices of Sweta Khandelwal. This Showcase will be for a Chief Executive Officer who is coming to the United States to open a new office and will work in a professional and managerial capacity from India.

The CEO in this case worked for a leading IT and business solution provider based in India. Founded in 2006, the company has a strong and growing client base in the UK, Israel, Hong Kong, Australia, and of course the United States. They also have 70 employees, all working towards providing consulting services in order to improve efficiency for their clients. The company acted as the parent company for the company acting as the petitioner in this L-1A case and owned the petitioner as one if its wholly owned subsidiaries.

The CEO herself was the Beneficiary in this case and has been the Chief Operating Officer of the petitioner’s parent company. She had both functional duties (such as recruitment, strategizing, and planning) as well as executive duties (such as policy formation, community relations, and organizational matters) while with the petitioner’s parent company in India.

The interesting twist about this case was that the CEO-beneficiary was coming for just one year to help set up a branch office in the United States; most L-1 cases are to hire high level workers for just three years. Mrs. Khandelwal was able to successfully argue that the nature of the US office, the revenue already generated by Petitioner’s efforts in the United States, and the fiercely competitive nature of the petitioner’s business justified the opening of a new office. Although on its face arguing that opening a new office may sound intuitively easy, it actually requires an attorney to work very closely with the petitioner to learn their business, their needs, and their accomplishments in order to mold these facts into a proper legal argument. Also, among the many required documents, a full business plan was required to show that the size of the U.S. investment and the petitioner’s ability to commence doing business in the United States. Drafting such a business plan and then conforming them to USCIS standards can be a daunting task and requires expertise not all immigration attorneys have.

The United States has become a hotbed of foreign investments and foreign companies looking to expand their international reach. It takes a savvy immigration lawyer to navigate the business and immigration issues in order to hire a new L-1 employee to open a new office. If you have questions about expanding into the United States, please feel free to contact us today.

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Battling Immigration Fraud

Crackdowns on notarios have caught media attention recently, and with good reason. Notarios are generally those who may be notaries but pretend to be licensed attorneys. In many other countries, notaries and attorneys are one and the same. However, notarios in the United States use this fact to take advantage of unsuspecting and newly arrived immigrants by pretending they can help them with their immigration issues. Not only is this the unauthorized practice of law and thus illegal under state laws, but notarios often misguide their clients to have their visas eventually denied or even have them deported. Notario fraud has especially experienced an uptick with the recent media attention over immigration reform with false promises to obtain green cards for undocumented noncitizens. However, we remind our readers that this legislation is only proposed and not yet law and people with immigration issues should always seek the advice and assistance from an immigration attorney with an active license.d

California’s reaction to notario fraud has led to a proposed piece of legislation, dubbed AB 1159. It technically only applies to immigration attorneys who intend to provide services related to federal immigration reform bill, otherwise known as the “Border Security, Economic Opportunity, Immigration Modernization Act, S. 744 2013.” However, given how widespread and sweeping this bill is, it would potentially affect every immigration attorney in California. One problem with California’s AB 1159 is that it would require immigration attorneys to post a bond of $100,000 and pay additional registration fees to the State Bar. This is a problem because immigration is not as a lucrative field as litigation, corporate, or other fields of law despite the stereotype about attorneys in general. Furthermore, many immigration attorneys are immigrants themselves or are from immigrant families; thus, aspiring young ethnic lawyers will have a very difficult time establishing their own practices to help their community in an already difficult economic period. Also, AB 1159 itself is a huge overreaction and assumes that fraud permeates throughout the immigration attorney bar, which is an assumption based on a few bad eggs. Such legislation shouldn’t affect the thousands of immigration professionals in California based on emotions alone.

The California legislature isn’t the only governmental entity attempting to address notario fraud. Most recently, the Department of Justice made a press release on Tuesday, August 27, detailing how three Missourians were sentenced to prison and required to pay $613,969 in restitution to their victims. “Immigrants who come to this country and try to play by the rules deserve fair treatment under the law – not to be bilked out of their hard-earned savings by those looking for a quick buck,” said Stuart F. Delery, Assistant Attorney General of the Justice Department’s Civil Division. “We are pleased to have worked with our law enforcement partners to bring to justice the leaders of this fraudulent operation.” The Missourian notarios made their ill-gotten gains through a common notario tactic – selling immigration forms that could be gotten for free at any USCIS office or online.

Fraud also reaches into the business-side of immigration. In February of this year, the Securities and Exchange Commission announced charges and an asset freeze against an individual representing a Regional Center in Chicago, IL that had defrauded $150 million out of foreign investors seeking an EB-5 visa. The SEC alleged that the Regional Center representative made false statements to investors and used investor funds to settle other litigation and other unrelated expenses. The full complaint can be found here. Although not necessarily notario fraud, it attests how expert immigration attorneys are required to navigate the very complicated immigration process.

If you or someone you know has been a victim of immigration fraud, or if you have questions about this article, feel free to contact our office.

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