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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.

Tags: #AAO, #immigration law attorney, #immigration law lawyer, #L-1A, #USCIS




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