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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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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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