L1 and EB1(3) - Seattle University School of Law - 01 - Spring...executive, or specialized knowledge 2018 NW Regional Immigration Law Conference Business Track, Session 9 L1 and EB1(3)

L1 and EB1(3)Lisa Christoffersen of Christoffersen Law, Seattle WA

Melany Savitt of Tonkon Torp, Portland OR

L1Regulations and

Memos

INA 101(a)(15)(L) / INA

203(b)(1)(C)

8 CFR 214.2(l) / 8 CFR 204.5(j)

9 FAM 402.12

USCIS Policy Memorandum, “L-1B

Adjudications Policy” (August 17, 2015)

2018 NW Regional Immigration Law ConferenceBusiness Track, Session 9

L1 and EB1(3)

March 15-16, 2018 Page 1 of 21

L‐1B Rates

L‐1 Basics

Qualifying Time:

1 continuous year of work for the employer abroad within

the three years before admission

Qualifying Relationship: Employer abroad must be

petitioner or its parent, subsidiary, branch, or

affiliate

Qualifying Position: Position in US and abroad

must be managerial, executive, or specialized

knowledge


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March 15-16, 2018 Page 2 of 21

USCIS SERVICE CENTERS

L1A and L1B

• Form I-129 with L Supplement & supporting

• Filing fees: $460 + $500; Premium Processing: $1,225

US DEPARTMENT OF STATE – CONSULATES

Approved USCIS Petition

L Blanket Authorization

CBP

Approved USCIS Petition &/or Visa

Border Application: Canadians• 2/24/2015 Infonet

15022565 CBP L1 Checklist

L1 Qualifying Relationships

* Ownership and Control

See AFM 32.3(d) and 9 FAM 402.12

50/50 Joint Ventures and Ownership as

a common group

Practice tip: Helpful to use

graphics/organizational charts

Documentation


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New U.S. Entities

New Company if doing business in U.S. for less than one year. See 8 CFR 214.2(l)(1)(ii)(F)(H) Authorization: one year then extend in 2-year

increments

Show office space, with photos and lease

Ownership documentation

Will support managerial position within one year

Business plan

Organizational structure of international business

Employees, cash flow, contracts

Mergers & Acquisitions

Successor in Interest Sale of foreign employerChange in job locationsChange in positions and titles Impact on L Employees Amended filings

Travel issues

Change of status


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L‐1A: Executives

Basic Requirements (8 CFR

214.2(l)(1)(ii)(C):…employee primarily

Directs the management of the organization,

major component, or function;

Establishes goals and policies of the

organization, component, or function;

Exercises wide latitude in discretionary

decision-making; and

Receives only general supervision or

direction from higher level executives, board

of directors, or stock-holders of the

organization.

L‐1A: Managers

Basic Requirement (8 CFR 214.2(l)(1)(ii)(B)): Manages organization, department,

subdivision, function, or component;

Supervises and controls the work of other supervisory, professional, or managerial employees, or an essential function within the organization;

Has authority to hire and fire and recommend personnel actions, or functions at a senior level within the company hierarchy or with respect to the function managed; and,

Exercises discretion over the day-to-day operations of the activity or function.


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Matter of Z‐A, Inc.

Matter of Z-A-, Inc. Adopted Decision 2016-02 (AAO

April 14, 2016) Policy Memo April 14, 2016 (See AILA

Doc 16042135)

Discussion of operational and administrative tasks

Relevant factors to whether duties are primarily

managerial include:

Nature/scope of business

Organizational structure/staffing levels/position within org.

Scope of authority

Work performed by other staff

Any other factors contributing to an understanding of actual

duties

Staffing levels: consider the reasonable needs of the

organization as a whole

Functional Manager L‐1A

Manages function; Supervises and controls an

essential function within the organization; Functions

at a senior level within the company hierarchy or

with respect to the function managed; and Exercises

discretion over the day-to-day operations of the

function.

Practice Pointers:

Provide hierarchical and workflow charts

Explain the value of function / why function is critical

Provide any contracts/agreement entered into by

individual for company

Emphasize managing rather than doing


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L‐1A RFE Practice Pointers

RFE Trends – L-1A

General Practice Pointers Check RFE and denial templates

No need to work in same capacity abroad

Include legal prongs, bullet points, visual images of work

State function clearly/narrow definition

L-1A – People Manager Hierarchical organization chart

name, job title, summary of duties, education level, and salary

Salary $100K+

Title

L-1A – Functional Manager Hierarchical and workflow charts

Value of function / why function is critical

Contracts/agreement entered into by individual for company

Emphasize managing rather than doing

L‐1B: Specialized Knowledge

Basic Requirement (8 CFR 214.2(l)(1)(ii)(D) and 9 FAM

402.12-14(C) & (D)):

Has special knowledge of the company’s product, service,

research, equipment, techniques, management or other

interests and its application in international markets, or has

an advanced level of knowledge of the company’s

processes and procedures.

International competitiveness

Highly scrutinized

Documentation: See pg. 12 of L-1B Policy Memo

L Status Not Applicable to Skilled Workers (9 FAM

402.12-14(E))

5 year limitation and no benefit from AC21 extensions


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March 15-16, 2018 Page 7 of 21

August 2015 (AILA Doc 15081801)

L‐1B Adjudications Policy Memo

Special knowledge: knowledge of the petitioning

organization’s product, service, research, equipment,

techniques, management, or other interests and its

application in international markets that is distinct or uncommon in comparison to that generally found in

the particular industry; or

Advanced knowledge: knowledge of or expertise in

the petitioning organization’s specific processes and

procedures that is not commonly found in the relevant

industry and is greatly developed or further along in progress, complexity and understanding than that

generally found within the employer.

Practice Pointers: How specialized is

specialized?

Specialized knowledge generally cannot be commonly held, lacking in complexity, or easily imparted to other individuals

Specialized knowledge need not be proprietary or unique to the petitioning organization

L-1B classification does not involve a test of the U.S. labor market

Specialized knowledge need not be narrowly held within the petitioning organization.

"The mere existence of other employees with similar knowledge should not, in and of itself, be a ground for denial." PM, pg. 10

Specialized knowledge workers need not occupy managerial or similar positions or command higher compensation compared to their peers

Eligibility for another nonimmigrant classification is not a bar to eligibility for L-1B classification


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Practice Pointers

Highly scrutinized

SIMPLIFY arguments and technical descriptions

BULLET POINT list of proprietary tools, products, etc. with

explanation of each

Articles on new technology

SIZE: Small companies and Chinese companies

VALUE/Budget of the project/assignment (critical):

Describe significant assignments (with $ value/budget)

International competitiveness

Consider immigrant visa path(s) early – no EB1(3) for L1Bs; potentially long backlogs with EB2 or EB3 – might need to change to H-1B status (lottery) for AC21 extension eligibility.

Consulate & Border

Information

Discuss position and classification with employee prior to consular appointment & first entry

L1A managerial duties / function

L1B specialized knowledge – what does that mean?

Need to understand USCIS approval does not mean DOS and CBP approval

Understand organizational structure

Be able to write description of position

I-94 variable, particularly with Blanket

DOS Statistics (as of Feb 1, still updated): https://travel.state.gov/content/travel/en/legal/visa-law0/visa-statistics/nonimmigrant-visa-statistics/monthly-nonimmigrant-visa-issuances.html

Sample January 2018 L1 visa issuance by country: India 1,508; Mexico 506; UK 477; China 407; Brazil 329; Japan 280; Germany 224; S.Korea 192; France 164; Spain 122; Italy 119; Australia 106; Netherlands 96; Russia 70; S.Africa 64; Belarus 24; Turkey 16


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L1 Blankets

L Blanket: Employee Application Process

USCIS SERVICE CENTERS

Blanket Petition for Company

• Initial 3 years• Indefinite

extension

US DEPARTMENT OF STATE – CONSULATES

Employee files L-1A or L-1B professional application directly at consulate overseas with L Blanket approval notice

CBP

Employee presents approved visa and stamped I-129S


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L‐1 Blanket Eligibility

COMPANY

Petitioner has office and has been doing business in

U.S. for more than one year;

Petitioner has 3 or more domestic and foreign

branches, subsidiaries, or affiliates

Petitioner and foreign entities are engaged in

commercial trade or services

Combined U.S. annual sales of $25 million; U.S.

workforce of at least 1,000; or 10 L petitions approved in

past 12 months.

L Blanket: Company Application

Procedure:

Initial Blanket valid for 3 years

Seek indefinite approval

Blanket approval can be revoked if:

Not extended prior to expiration

Failure to extend = barred from applying for a

new blanket petition for 3 years

Failure to use it for 3 consecutive years


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March 15-16, 2018 Page 11 of 21

L BLANKET Company RFE

Trends & PracticePointers

U.S. Office: You must show that you have an office in the United States that has been doing business for one year or more

Domestic and Foreign Branches, Subsidiaries, or Affiliates: You must show that you have three or more domestic and foreign branches, subsidiaries, or affiliates

Commercial Trade or Services: You must show that you and each of the other requested qualifying entities are engaged in commercial trade or services for profit

Other Evidence: You must show that you and the other qualifying organizations have: U.S. subsidiaries or affiliates with combined annual sales of at

least $25 million;

A U.S. workforce of at least 1,000 employees; or

At least 10 approvals for L-1 managers, executives, or specialized knowledge professionals during the previous 12 months

Sample Blanket Approval


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L Blanket Employee Application

Qualifying relationship between U.S. and foreign

entities already approved

Executives, Managers, and Specialized Knowledge

Professionals file for L-1 authorization directly at U.S.

consulate abroad without first seeking approval from

USCIS

DS-160 and visa appointment

Form I-129S with supporting evidence including blanket

approval notice and list of subsidiaries (triplicate)

Issues with inconsistent visa issuance and certification of

Form I-129S

Can be reassigned to any organization listed under the

blanket petition as long as the beneficiary will perform

virtually the same job duties

9 FAM 420.12‐8(F) lists Blanket L

procedure in detail


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March 15-16, 2018 Page 13 of 21

Sample Approved I‐

129S

Sample L‐1 Visa


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EB1(3)Immigrant Visas

Generally:

Dual intent

“Fast” track to green card (no labor certification req)

Note: lengthy processing times & no premium processing

EB1(3)Regulations and Memo

INA 203(b)(2) & 8 CFR 204.5(j) Certain

multinational executives & managers

AFM Ch.22.2: Employment-based

Immigrant Visa Petitions (Form I-140),

especially 22.2(i)(3)

AC21 106(c) –see AFM Ch.20.2(d) &

Policy Memo


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8 CFR 204.5(j)Initial Evidence

204.5(j)(3) Initial evidence--

204.5(j)(3)(i) Required evidence. A petition for a multinational executive or manager must be accompanied by a statement from an authorized official of the petitioning United States employer which demonstrates that:

204.5(j)(3)(i)(A) If the alien is outside the United States, in the three years immediately preceding the filing of the petition the alien has been employed outside the United States for at least one year in a managerial or executive capacity by a firm or corporation, or other legal entity, or by an affiliate or subsidiary of such a firm or corporation or other legal entity; or

204.5(j)(3)(i)(B) If the alien is already in the United States working for the same employer or a subsidiary or affiliate of the firm or corporation, or other legal entity by which the alien was employed overseas, in the three years preceding entry as a nonimmigrant, the alien was employed by the entity abroad for at least one year in a managerial or executive capacity;

204.5(j)(3)(i)(C) The prospective employer in the United States is the same employer or a subsidiary or affiliate of the firm or corporation or other legal entity by which the alien was employed overseas; and

204.5(j)(3)(i)(D) The prospective United States employer has been doing business for at least one year.

EB1(3)Different from L1 Standard

Qualifying Relationship:

8 CFR 204.5(j)(2): The foreign employer must continue to do business until visa issuance or AOS

Doing Business:

8 CFR 204.5(j)(3)(i)(D): US Employer must have been doing business for one year (no “new office” provisions). Note existence for one year is not enough – continuous provision of goods & services

8 CFR 204.5(j)(2) Definitions “Doing business means the regular, systematic, and continuous provision of goods and/or services by a firm, corporation, or other entity and does not include the mere presence of an agent or office”

Qualifying Employment:

Time: AFM notes that person must have been employed abroad for at least one year (not one continuous year as in 101(a)(15)(L))

Executive or Managerial Capacity: both abroad and in the U.S.

EB1(3) adjudicators not bound by L-1A approval: “…each petition is separate and independent, and must be adjudicated on its own merits, under the corresponding statutory and regulatory provisions” (AFM 22.2(i)(3)(H))


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March 15-16, 2018 Page 16 of 21

Same Employer Abroad

Bird Technologies Group, Inc. (AILA 17110839, filed

& dated Nov 7, 2017) – AIC appeal pending

Manager in Brazil for almost 9 years directly for U.S.

multinational company & will continue to manage in U.S.

“…seeks to enter the United States in order to continue to

render services to the same employer or to a subsidiary or

affiliate thereof in a capacity that is managerial or executive.”

See: 8 USC 1153(b)(1)(C) and 8 CFR 204.5(j)(3)(i)

U.S. company was not incorporated in Brazil and did not

have an affiliate or subsidiary in Brazil

But U.S. company is multinational (conducting business in

2 or more countries, one of which is U.S., 8 CFR

204.5(j)(2))

Successor In Interest

Successor In Interest: AFM Ch.22.2(b)(5)(D):

“Successor-In-Interest Analysis Not Applicable to I-140

Visa Preference Categories that Do Not Require Labor

Certification:…An employer seeking to classify the alien

as an EB1 Multi-National Executive or Manager or EB1

Outstanding Professor or Researcher, must file a new

I-140 petition and establish the alien’s eligibility

under the requested category’s specific eligibility

requirements.”


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March 15-16, 2018 Page 17 of 21

INA 204(j) Portability [AC21

106(c)]

If I-485 has been pending for 180 days or more and the new job is in “the same or similar occupational classification.” Applies to INA 203(b)(1)(C) cases.

See Policy Memorandum: Determining Whether a New Job is in “the Same or Similar Occupational Classification” for Purposes of Section 204(j) Job Portability, March 18, 2016 (AILA 16032161) Do the jobs have a marked resemblance or likeness?

Use OOH, ONet, and SOC

SOC: best if same detailed occupational code. Ok if different detailed code within the same broad classification. Managers are in major group 11-0000. Note wages can be a consideration in same/similar determination.

See AFM Ch. 20.2(d): Notes that without labor certification, applicant must establish correct SOC in original petition & new position

Current processing times and high frequency of RFEs at I-140 stage make portability less useful for EB1(3)s

Managerial Duties:

Size of Operation

Family, Inc. v. USCIS (9th Cir. Dec. 4, 2006) (AILA 07020266) Size alone is not determinative, but USCIS may consider small

size as a factor in assessing whether operations are substantial enough to support a manager

Dry cleaning operation with Beneficiary, his wife, three pressers, and a cashier

“likely to be involved in the performance of routine operational activities of the business’ rather than in managing the business”

Note 8 CFR 204.5(j)(4)(ii) “Staffing levels. If staffing levels are used as a factor in determining whether an individual is acting in a managerial or executive capacity, the reasonable needs of the organization, component, or function, in light of the overall purpose and stage of development of the organization, component, or function, shall be taken into account. An individual shall not be considered to be acting in a managerial or executive capacity merely on the basis of the number of employees that the individual supervises or has supervised or directs or has directed”


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Ability to Pay

AFM 22.2(c): “…8 CFR 204.5(g)(2) requires that the evidence be in the form of annual reports, federal tax returns, or audited financial statements. In a case where the prospective employer employs 100 or more workers, you may accept a statement from a financial officer of the organization regarding its ability to pay the proffered wage.

In appropriate cases, the petitioner can submit or USCIS may request additional evidence such as profit/loss statements, bank account records, or personnel records. The burden remains on the petitioner to establish its ability to pay the wage.

Depending on corporate structure, acceptable evidence can include:

Publicly traded corporations—annual reports are sufficient if they contain detailed financial information, such as audited or reviewed financial statements issued by an independent accounting firm.

Privately held corporations—audited or reviewed financial statements from an independent accounting firm.

Partnerships—audited or reviewed financial statements from an independent accounting firm.

Non-profit institutions—a letter from an inside financial officer is sufficient for large, well-established institutions. Documentary evidence of the non-profit’s financial status may be required for institutions that are not as well-established.”

Functional Managers

AFM Ch 22.2(i)(3)(E)(1): Functional Managers “… For example, an alien who claims to primarily direct the laboratory

research on chemical compounds for a specialty chemical company cannot also be primarily performing the day-to-day laboratory research. An employee who primarily performs the tasks necessary to produce a product or to provide services is not considered to be employed in a managerial or executive capacity. Boyang, Ltd. v. I.N.S., 67 F.3d 305 (Table), 1995 WL 576839 (9th Cir, 1995) (citing Matter of Church Scientology International, 19 I&N Dec. 593, 604 (Comm. 1988)).

In applying the statute and applicable regulations to determine whether the beneficiary meets the definition of a “manager” of a function, it is useful to turn to Barron’s Dictionary of Business Terms, which defines functional authority as “staff ability to initiate as well as to veto action in a given area of expertise. Functional authority allows decisions to be implemented directly by the staff in question. Areas where functional authority is found are accounting, labor relations, and employment testing.” A business textbook, Management for Productivity, by John R. Schermerhorn, Jr., defines functional authority as “[t]he authority to act within a specified area of expertise and in relation to the activities of other persons or units lying outside the formal chain of command.” A functional manager is defined as a “manager who has responsibility for one area of activity such as finance, marketing, production, personnel, accounting, or sales.””


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March 15-16, 2018 Page 19 of 21

Functional Managers: Matter of G‐

Inc.

Matter of G- Inc., Non-Precedent Decision of the AAO, date Feb 17, 2017 (AILA 17031331, posted 3/13/17) US Position: Director, Financial Planning & Analysis

Q: Will Beneficiary primarily manage an “essential function” within the organization? Essential = necessary, core, fundamental

Function = activity-focused definition (rather than organizational unit)

Senior personnel advance their organizations’ core activities

5 key points (next slide)

Noted hierarchy and $ value of function

Policy Memorandum November 8, 2017 (PM-602-0148) Subject: Matter of G- Inc., Adopted Decision 2017-05 (AAO Nov.8, 2017) (AILA 17110940, posted 11/9/17) Two steps:

A) Establish function is clearly defined activity & core to organization, then

B) position meets criteria for managerial capacity (see next slide)

Matter of G‐ Inc.Functional Manager(Con’t)

1) function must be clearly defined activity: Must

describe with specificity the activity to be managed,

2) function must be “essential” to the organization:

establish that the function is “core” to the petitioner’s

organization/business,

3) beneficiary will primarily manage (rather than

perform) the function: must clearly indicate the

proportion of time dedicated to each duty (percentage

breakdown),

4) beneficiary will act at a senior level w/in org

hierarchy or with respect to the function managed,

5) beneficiary will exercise discretion over the

functions day-to-day activities


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March 15-16, 2018 Page 20 of 21

EB1(3) RFEs

High number of RFEs: duties, staffing, ability to pay, doing

business, person writing letter is “authorized official”…

“Petitioner’s statement includes job duties which are given

in broad terms and are ambiguous…”

“Specific daily tasks that are involved with the completion of

each duty and the percentage of time to be spent on each;

please do not group individual tasks together;

List of employees (and individual contractors) in the

beneficiary’s immediate division, department, or team.

Include a summary of their job duties, educational level

required for the position, salary, and whether they work full or

part-time, and

A description of the products and services of your company,

including the exact productive and administrative tasks

necessary to produce the products and services. Explain who

performs those tasks, and tasks related to goal-setting, policy-

making, and discretionary decision-making.”

Questions

?


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March 15-16, 2018 Page 21 of 21

Documents

L1 and EB1(3) - Seattle University School of Law - 01 - Spring...executive, or specialized knowledge 2018 NW Regional Immigration Law Conference Business Track, Session 9 L1 and EB1(3)