Recent trends involving the L-1 Visa category for intra-company transferees

July 17, 2015
Jacob T. Muklewicz
InsideCounsel

This article is the second in a two-part series involving the L-1 visa category for intra-company transferees. The previous article  provided an overview of the L-1 visa category and suggested strategies to maximize its use in corporate entities in the U.S. and abroad. This article focuses on recent trends involving the L-1 visa category.

AAO Clarifies Qualifying L-1A Executive and Managerial Positions

U.S. Citizenship and Immigration Services (USCIS) has increasingly denied approvable L-1A petitions on the grounds the applicants were not managing professional personnel in the U.S. or were not responsible for key business functions. Fortunately, the Administrative Appeals Office (AAO) overturned many of USCIS’ erroneous denials of new office L-1A petitions. Following is a summary of three relevant AAO cases involving the California Service Center (CSC). 

In a case decided on November 6, 2012, the AAO overturned the CSC denial of an L-1A petition. USCIS concluded the manager’s duties were more indicative of employee tasks rather than management of the business. On appeal, the AAO concurred with the company’s assertion that the manager’s responsibility for a major business account could be equated to managing a subdivision, function or component of the organization. The company also provided evidence the manager performed at a senior level and exercised discretion over the day-to-day operations of the business function. 

In another 2012 CSC case, AAO overturned the denial of an L-1A petition wherein USCIS claimed the managers under the L-1A beneficiary’s supervision were not professionals, causing an erroneous conclusion the beneficiary was a first-line supervisor and the L-1A applicant’s duties were non-qualifying based on the incorrect assumption he would assist with the daily non-supervisory operations of the business. Overturning the denial, the AAO explained: 

In order to qualify as a manager, the beneficiary must oversee other supervisory employees, or, professional employees, or primarily manage an essential function of the organization. The beneficiary’s subordinate supervisory employees need not hold professional-level positions in order for him to qualify as a manager . . . 

While the beneficiary will undoubtedly be required to perform some administrative tasks, the petition has established by a preponderance of the evidence that the majority of the day-to-day non-managerial tasks required to produce the products and provide services of the company are carried out by the beneficiary’s subordinates. he petitioner [company] need only establish that the beneficiary devotes more than half of his time to managerial duties.

In 2013, the AAO overturned another L-1A denial when USCIS erroneously concluded the company failed to establish it would employ the beneficiary in a qualifying managerial or executive capacity. Overturning the CSC denial, the AAO explained:

Beyond the required description of the job duties, USCIS reviews the totality of the record when examining the claimed managerial or executive capacity of a beneficiary, including the petitioner’s organizational structure, the presence of other employees to relieve the beneficiary from performing operational duties, the nature of the petitioner’s business, and any other factors that will contribute to a complete understanding of a beneficiary’s actual duties and role in a business. In the case of an employee who is claimed to manage or direct an essential function, these other factors may include the beneficiary’s position within the organizational hierarchy, the depth of the petitioner’s organizational structure, the scope of the beneficiary’s authority and its impact of the petitioner’s operations, the indirect supervision of employees within the scope of the function managed, and the value of the budgets, products, or services that the beneficiary manages.

In this third case, the AAO found the beneficiary worked closely with the parent company’s international department, which employed technical, sales and administrative staff dedicated to business growth in the Americas. Though the company had only one sales manager and one customer service/administrative employee on staff, this should not have led to a conclusion the petitioner would require the beneficiary, as vice president and chief operating officer, to perform day-to-day sales duties. Rather, AAO concluded it was reasonable to believe the petitioner would rely on the support of the parent company’s well-documented international team. 

Regarding L-1B cases for specialized knowledge personnel, USCIS has also erroneously denied many approvable L-1B petitions by misapplying the evidentiary standard and misinterpreting the definition of “specialized knowledge.” On March 24, 2015 USCIS published a memorandum entitled “L-1B Adjudications Policy.” Following are two relevant excerpts:

Burden of Proof in L-1B Cases 

A petitioner seeking L-1B classification for an employee must establish that it meets each eligibility requirement of the classification by a preponderance of the evidence. In other words, the petitioner must show that what it claims is more likely the case than not. This is a lower standard of proof than that of “clear and convincing evidence” or the “beyond a reasonable doubt” standard. The petitioner does not need to remove all doubt from the adjudication. 

In order to establish eligibility for approval, the L-1B petitioner must show: (1) that the beneficiary possesses “specialized knowledge”; (2) that the position offered involves the “specialized knowledge” held by the beneficiary; and (3) that the beneficiary has at least one continuous year of employment abroad in a managerial, executive, or specialized knowledge capacity with the petitioning organization or a qualifying foreign organization within the preceding three years.