Category: L1 Visa

USCIS Issues New Memorandum On L1-B Adjudications

Yesterday, USCIS issued a Memorandum relating L1-B adjudications. This is an interim Memorandum, meaning that the government is asking for comments from the public. The comment period will end on May 8, 2015 and the Memorandum will be effective on August 31, 2015. As you may recall, President Obama made this one of his priorities in his November 20, 2014 announcement.

Perhaps the best thing in the Memorandum is the clarification of the applicable burden of proof. I have handled several of these cases where the AO asked for more information than necessary. These officer often forget that immigration is a civil matter and the applicable burden of proof is “preponderance of evidence” and is not “beyond a reasonable doubt” as it is in criminal cases. This is a very important distinction since a violation of this burden is arguably a violation of a Petitioner’s due process rights.

The Memorandum tries to clarify the meaning of the terms “advanced” and “specialized” knowledge. The Memorandum also lists things that the L1-B beneficiary does not have to possess. For example, the  memorandum mentions that an L1-B beneficiary does not have to be a manager or executive, and the Petition does not have to test the US Labor market. The Memorandum also mentions that the specialized knowledge does not have to be narrowly held in the petitioning organization. Lastly, the Memorandum also mentions that eligibility for another non-immigrant classification does not bar someone from holding the L1-B classification. The Memorandum also lists some needed documentation that would help a Petitioner show that the Beneficiary is eligible for L1-B classification.

The one great thing about the Memorandum is the fact that it adds much more details regarding the issue that its predecessors. For example,  the 12/02/2002 Memorandum regarding the same issue was less that one page long. However, there ares some issues relating to the present Memorandum that should be addressed. For example, I am afraid that the list of evidence would be used by adjudicators as the all inclusive list and would not allow other evidence to be admitted. Additionally, there is always the issue of misinterpretation. For example, I had an case where the adjudicator asked for patents held by the Petitioner, when the Memorandum clearly states that knowledge does not have to be exclusive to the Petitioner.

I welcome the Memorandum because it is desperately needed. I think the problem as I see it is not a problem of Memos, but a problem of adjudicators not following the law and applying their own interpretations. What do you think?

Applying for an E1/E2 Visa

One of the options that investors and traders could have to open businesses and gain entry into the United States is to apply for an E1 or and E2 visa. E1 and E2 visas are treaty based visas that allow investors (E2) or traders (E1) to come to the United States, open businesses, and remain in the United States as long as their business is ongoing. For a list of countries whose nationals qualify for these visas visit this link 
There are some differences between the two visas. A trader is a person who is entering the United States to trade in goods and services, among other things. An investor is someone who is coming to the United States to invest his money in an existing or a new business
One of the drawbacks for the visas is the limited circumstances where the visa could lead to permanent residence. For example, a holder of these visas could qualify for an Eb-5 visa when their investment reaches $500,000 or $1,000,000. That is one of the reasons that lead me to consider an L1 visa, if the requirements are met. Please comment on this post if you have any questions. 

Intra-Company Executive Visas: A way to Jump-Start our Economy

Our economy had been struggling to create jobs, and one way to move forward is to increase hiring by allowing international companies to more easily expand into the United States. The law allows a company located outside the United States to petition for one of its executives or managers to come to the United States to oversee the company’s expansion. The law allows an executive, a manager, or a person with special knowledge to assist in that expansion. This post will focus on international executives , with the promise that upcoming posts will focus on the others. 
A company wanting to expand into the United States must meet several requirements to petition for one of its executives. One of the first things is that the person must be coming to the United States to hold an executive capacity. The act defines executive capacity as an assignment under which the employee: 1) directs the management of the organization; 2) establishes goals and policies; 3) Receives general supervision from others. See INA §101(a)(44)(B)(2012). Another requirement is for the person to work for a “qualifying organization”, a company that is affiliated with the overseas company. Companies are affiliated within the meaning of the Act if they have a high degree of common ownership and management between the two companies. Matter of Tessel, Inc., 17 I&N Dec. 631, 632 (BIA 1981). These are only two of the most important requirements under the law. 

There is an additional requirement for “new offices”, companies that have been doing business in the United States for less than one year. These companies have to show that they have secured physical premises in the United States for the new company and must show that the company will be able to support an executive position within that first year. The company will also have to submit its organizational chart, among other things. The visa petition for new offices will be approved for an initial first year. The visa is limited to seven years. 
The recent trend by USCIS is to issue several Requests for Evidence, which has made companies more reluctant to take advantage of these visas. I believe that the government should ease the burden of proof on these companies, especially when our economy still struggles to generate jobs.

If you are an international executive or company looking to expand its operations into the United States, please contact us at 727-572-5000 or visit www.tuckerludin.com