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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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Legal Issue Series – How Many Researchers Does it Take?

This is the first of our Legal Issue Series, which will answer hard immigration questions and will attempt to fill in the many holes in the immigration system through legal analysis. The first of these holes is a twist to a common factual scenario: A petitioner-company wants to petition one of its three full-time researchers for an EB-1B visa. However, the full-time researcher in question is currently on a nonimmigrant visa (L-1B, H-1B, etc.).

The EB-1B visa we’ve previously discussed, and can be found here. In the context of our situation at hand,the EB-1B visa can be used for a variety of research institutions or “medical practice/research centers” as defined in the Immigration and Nationality Act (“INA”). Some of these institutions may be small with only two or three full-time researchers. The number of full-time researchers is important for an organization petitioning for an EB-1B visa for a new full-time researcher, because the INA states that a visa is available for a researcher if:

The alien seeks to enter the United States for a comparable position to conduct researcher in the area with a department, division, or institute of a private employer, if the department, division, or institute employs at least 3 persons full-time in research activities and has achieved documented accomplishments in an academic field.

INA § 203(b)(1)(B)(iii)(III); 8 U.S.C. § 1153(b)(1)(B)(iii)(III) (emphasis added)

The focus of this article will be the bolded portion. The hard immigration question applies in the situation where the petitioner-company has three full-time researchers, but one of the three is on a temporary nonimmigrant visa (L-1, H1-B, etc.) and is now seeking to adjust their status to receive a EB-1B visa.

There is little guidance in the rest of the INA or legislative history to help answer this question. This question could make or break smaller institutions with three full-time researchers because it could potentially bar them from receiving EB-1B visas for future full-time researchers.

On one hand, one could argue that the third nonimmigrant visa researcher would help the petitioner-company qualify as having three full-time researchers. Since the petitioner-company already has three full-time researchers, their visa status should not matter and the nonimmigrant visa researcher can adjust their status to receive an EB-1B visa.

On the other hand, the argument could be made that the institution must have three full-time researchers who are not currently seeking an EB-1B visa. This is from the language of § 203(b)(1)(B)(iii)(III) as quoted above: “seeks to enter” and “employs at least 3 persons full-time” are in the present tense, and thus the petitioner-company must already have three full-time researchers. This is because the third researcher is “seeking to enter” by attempting to receive an EB-1B visa, even though the researcher is in the United States on a nonimmigrant visa. Thus, he may not count as the third anymore for purposes of the EB-1B petition.

The Administrative Appeals Office (“AAO”), a quasi-judicial branch that deals with some types of immigration appeals, addressed this issue in an unpublished decision and agreed with the second argument. Given the present tense of the statutory language and that the Director of the California Service Center used that interpretation, the AAO gave that interpretation deference, as the AAO will typically do as long as the interpretation is reasonable.

In conclusion, a petitioner-company who is attempting to obtain an EB-1B visa for a full-time researcher must have three full-time researchers who are not seeking any visas. Even though one of the three researchers has a nonimmigrant visa (L-1, H1-B, etc.) and is currently employed at the petitioner-company, a petitioner-company cannot adjust that researcher under an EB-1B visa.

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