Chapter 32 Petitions for Intracompany Transferees (L classification).
32.1 Background.
The L classification, which originated with the 1970 amendments to the Immigration and Nationality Act, Pub. L. 91-225, was designed to facilitate the temporary transfer of foreign nationals' management, executive, and specialized knowledge skills to the United States to continue employment with an office of the same employer, its parent, branch, subsidiary, or affiliate.
The Immigration Act of 1990 (IMMACT), Pub. L. 101-649, made several modifications to the existing L category. Section 123 of IMMACT changed the definition of manager in section 101(a)(44) of the Act to also include “functional managers”, or those managers that manage an essential function within the company.
Section 205(b) of IMMACT eliminated L nonimmigrants from being “presumed to be an immigrant” under section 214(b) of the Act.
Section 206 of IMMACT specified new limitations on the period of stay for L
visa holders: seven years for executives/managers and five years for specialized knowledge personnel. That section also modified the definition of “affiliate” to specifically include the international partnership agreements used by international accounting firms. Section 206 also mandated a “blanket” petition process to accelerate the admission of individual L nonimmigrants. Finally, section 206 modified the prior qualifying experience requirement to al low one year of the prior three (rather than the immediate prior year) to qualify an L-1 employee.
Section 6 of the Nursing Relief for Disadvantaged Areas Act of 1999, Pub. L. 106-95 , further expanded the definition of "affiliate" to qualify for L-1 classification employees of international management consulting firms (most of which had been spun off from international accounting firms bearing the same names).
32.2 Terminology.
(a) General . One of the keys to the adjudication of a petition for L-1 classification is the understanding of the meaning of several key terms. These terms have been defined over the years through various documents, including statutes, regulations, precedent decisions, and policy memoranda. While the following chart provides a brief explanation of these terms, it may be necessary to review the full document (statute, regulation, or precedent decision) in order to understand all the nuances of any given term.
(b) Exceptions to General Definitions .
(1) Affiliate, As It Relates to International Accounting Firms or Management Consulting Services . An entity that is organized outside the United States to provide accounting services or management consulting services shall be considered to be an affiliate of the United States accounting or management consulting partnership if it markets its accounting or management consulting services under the same internationally recognized name directly or indirectly under an agreement with the same worldwide coordinating organization of which the United States accounting or management consulting services partnership is also a member. It is important to note that this definition does not create a separate category of beneficiaries which may use the L intracompany transferee visa category, or the EB-1 Multinational Executives and Managers visa category. This expanded definition originated in 1996 with IIRIRA, Pub. L. 101-649 (for international accounting firms), and the Nursing Relief fo Disadvantaged Areas Act of 1999, Pub. L. 106-95 (for international management consulting fir ms). It is important to note that there is no relationship between an international accounting firm and a management consulting firm with the same or a similar name.
32.3 Individual L Petition Process.
(a) General . (Chapter 32.3 Revised [07/28/05]; AFM 05-26) Section 101(a)(15)(L) of the Act and regulations at 8 CFR 214.2(l) are designed to facilitate the temporary transfer of foreign nationals with management, executive, and specialized knowledge skills to the United States to continue employment with an office of the same employer, its parent, branch, subsidiary, or affiliate. Petitioners seeking to classify aliens as intracompany transferees must file a petition on Form I-129 (including the L supplement) with USCIS for a determination on whether the alien is eligible for L-1 classification and whether the petitioner is a qualifying organization. An individual L-1 petition is filed at the service center having jurisdiction where the alien will be employed, except that NAFTA cases (discussed in Chapter 37 ) may be filed at Class A ports of entry. General adjudicative principles and procedures described in Chapter 10 apply. For statistical purposes executives and managers are internally coded (in CLAIMS) L-1A and specialized knowledge employees are coded L-1B, although only “L-1” is used for visa issuance and admission purposes.
(b) Basic Evidentiary Requirements for an L-1 Petition . Evidence of the following must be submitted to support all petitions filed for L classification:
· There must be a qualifying relationship between the business entity in the United States and the foreign operation which employs the alien abroad;
· For the duration of the alien's stay in the United States as an intracompany transferee, the petitioner must continue to do business both in the United States and in at least one other country, either directly or through a parent, branch, subsidiary, or affiliate.
· The alien must have been employed abroad by the foreign operation for at least one of the last three years. Such one year of employment outside the U.S. must have been continuous. Although authorized periods of stay in the United States for the foreign employer are not interruptive of the prior year of employment, such periods may not be counted towards the qualifying year of employment abroad. See Matter of Kloeti, 18 I&N Dec. 295.
· The alien's prior year of employment abroad must have been in a managerial, executive, or specialized knowledge capacity. The prospective employment in the United States must also be in a managerial, executive, or specialized knowledge capacity. However, the alien does not have to be transferred to the United States in the same capacity in which he or she was employed abroad. For example, a manager abroad could be transferred to the United States in a specialized knowledge capacity or vice versa. See Matter of Vaillancourt, 13 I&N Dec. 654.
The burden is on the petitioner to provide the documentation required to establish eligibility for L classification. The regulations do not require submission of extensive evidence of business relationships or of the alien's prior and proposed employment. In most cases, completion of the items on the petition and supplementary explanations by an authorized official of the petitioning company will suffice. In doubtful or marginal cases, the director may require other appropriate evidence which he or she deem s necessary to establish eligibility in a particular case.
Note: Section 214(h) of the Act eliminates the need to adjudicate the issue of whether an L nonimmigrant is actually being transferred on a temporary basis. Many such nonimmigrants eventually adjust
status or procure an immigrant visa. Also, section 214(b) eliminates L nonimmigrants from the classes of persons “presumed to be an immigrant.” (However, even before the addition of section 241(h), an L-1 nonimmigrant was not required to maintain a foreign residence which he/she had no intention of abandoning.)
(c) Anti “Job-Shopping” Provisions of the L-1 Visa Reform Act . Among the provisions of Public Law 108-447 at Division J, Title IV, is the L-1 Visa Reform Act. Section 412(a) of Title IV adds a new section 214(c)(2)(F) to the Immigration and Nationality Act, as amended (Act). New section 214(c)(2)(F) renders ineligible for L nonimmigrant classification a specialized knowledge worker if the worker will be “stationed primarily” at the worksite of an employer other than the petitioner or an affiliate, subsidiary, or parent and either (1) the alien will be “principall y” under the “control and supervision” of the unaffiliated employer, or (2) the placement at the non-affiliated worksite is “essentially an arrangement to provide labor for hire for the unaffiliated employer,” rather than a placement in connection with the provision of a product or service for which specialized knowledge specific to the petitioning employer is necessary.
Several conditions must be met in order for this ground of ineligibility to apply:
First, the alien worker must be a specialized knowledge worker. The term “specialized knowledge” should be familiar to adjudicators and is defined at 8 CFR 214.2(l)(ii)(1)(D) and, with respect to professionals, at 8 CFR 214.2(l)(ii)(1)(E) . The change does not apply to other (i.e., managers and executives) L nonimmigrants.
Second, the worker must be stationed primarily at a worksite outside the L organization. Thus, so long as the worker is to be stationed and actually employed within the L organization, this particular ground of ineligibility does not apply. Moreover, even if the worker is stationed outside the L organization, the worker must be “stationed primarily” outside the organization. We interpret this provision to mean that, as a threshold matter, in order for the section 214(c)(2)(F) bar to L classification to apply, a majority of the alien’s work-related activities must occur at a location other than that of the petitioner or its affiliates. In this regard, even if the majority of an alien’s time is physically spent at the petitioner or its affiliates’ location, to the extent that such time can be considered to be “down time” rather than time actually performing the services described in the petition, an alien might be subject to the section 214(c)(2)(F) bar (since, in this example, the majority of the alien’s actual work time is spent at an unaffiliated company or companies’ work site). The number of non-affiliated worksite locations where the alien might be stationed, by itself, is not relevant; what is relevant is the location where the alien will be actually be engaged in employment as specified in the underlying petition.
If the alien worker is “stationed primarily” outside the L organization, as described above, then there are two independent means by which the alien worker may be rendered ineligible for L status.
The first means relates to the control and supervision of the worker. Even if the alien worker is to be stationed “primarily” outside the L organization, that fact alone does not establish ineligibility for L classification. In order for the ground of ineligibility to apply, “control and supervision” of the worker at the non-affiliated worksite must be “principally” by the unaffiliated employer. Again, adjudicators should use the common dictionary meaning of the term “principally,” which means “first and foremost.” Thus, even if the non-affiliated entity exercises some control or supervision over the work performed, as long as such control and supervision lies first and foremost within the L organization, and the L organization retains ultimate authority over the worker, the ground of ineligibility does not apply. For example, an L-1 worker may be stationed primarily outside the L organization, but receives all direction and instruction from a supervisor within the L organization structure. The non-L or ganization client may provide input, feedback, or guidance as to the client’s needs, goals, etc., but does not control the work in the sense of directing tasks and activities. So long as the ultimate authority over the L-1 worker’s daily duties remains within the L organization, the fact that there may be some intervening third party supervision or input between the worker and the L organization does not render the worker ineligible for L-1B classification.
The second means relates to the nature of the alien worker’s placement outside the L organization. Such an alien worker is ineligible for L classification if the placement at the unaffiliated worksite is “essentially an arrangement to provide labor for hire” for the unaffiliated employer rather than a placement in connection with the provision of a product or service for which specialized knowledge specific to the petitioning employer is necessary. What constitutes “essentially” such an arrangement is in herently a fact question, and adjudicators therefore must look at the all aspects of the activity or activities in which the alien will be engaged away from the petitioner’s worksite. In general, if the off-site activity or activities do not require specialized knowledge of the petitioner’s product or services, or if such knowledge is only tangentially related to the performance of such off-site activities, the alien will fall within the ambit of the section 214(c)(2)(F) bar. For example, an alien would be ineligible for L classification if a petitioner is essentially in the business of placing workers with various unaffiliated companies, irrespective of the alien’s specialized knowledge of the petitioner’s particular product or service, where the off-site activities to be performed do not require such specialized knowledge. On the other hand, if the petitioner is primarily engaged in providing a specialized service, and typically sends its specialized knowledge personn el on projects located on the work site of its unaffiliated clients to perform such services, then, assuming the alien remains under the principal control and supervision of the petitioning employer, and otherwise meets the basic requirements for L classification, the alien would not be subject to the section 214(c)(2)(F) bar.
(d) Petitioner's Status . The petitioner for an intracompany transferee must be a firm, corporation, or affiliate thereof which is seeking to transfer a foreign employee to the United States temporarily from one of its operations outside the United States. Either the United States employer or the foreign employer may file a petition with USCIS to classify the alien as an intracompany transferee. The petitioner must be actively engaged in providing goods and/or services in the United States and abroad, either directly or through a parent, branch, subsidiary, or affiliate, with employees in both countries, for the duration of the alien's stay. The mere presence of an agent or office of the petitioner is insufficient evidence of this requirement.
Depending on the nature of the petitioner, different types of evidence may be required:
· Large, Established Organizations . Such organizations may submit a statement by the company's president, corporate attorney, corporate secretary, or other authorized official describing the ownership and control of each qualifying organization, accompanied by other evidence such as a copy of its most recent annual report, Securities and Exchange Commission filings, or other documentation which lists the parent and its subsidiaries.
· Small Business and Marginal Operations . In addition to a statement of an authorized official regarding ownership and control of each qualifying organization, other evidence of ownership and control should be submitted, such as records of stock ownership, profit and loss statements or other accountant's reports, tax returns, or articles of incorporation, by-laws, and minutes of board meetings.
· New Offices . If the beneficiary is coming to the United States to open a new office, proof of ownership and control, in addition to financial viability, is required. The petitioners' statement of ownership and control should be accompanied by appropriate evidence such as evidence of capitalization of the company or evidence of financial resources committed by the foreign company, articles of incorporation, by-laws, and minutes of board of directors' meetings, corporate bank statements, profit and loss statements or ot her accountant's reports, or tax returns. See documentary requirements for new office cases in 8 CFR 214.2(l)(3)(v) and discussion in Matter of Leblanc, 13 I&N Dec. 816 .
Note: If the petition is approved under this provision, its validity is limited to one year, after which a new petition must be filed for
extension of stay (see 8 CFR 214.2(l)(7)(i)(A)(3) ).
· Partnerships . To establish who owns and controls a partnership, a copy of the partnership agreement must be submitted. To establish what the partnership owns and controls, other evidence may be necessary. By law, international partnerships which provide accounting services or management consulting services meet the criteria as qualifying organizations for L-1 purposes. Extensive documentation in such cases is not required.
· Proprietorships . In cases where the business is not a separate legal entity from the owner(s), the petitioner's statement of ownership and control must be accompanied by evidence, such as a license to do business, record of registration as an employer with the Internal Revenue Service, business tax returns, or other evidence which identifies the owner(s) of the businesses.
· Joint Ventures . As discussed in Matter of Hughes, 18 I&N Dec. 289 (Commissioner, 1982), there are two types of joint venture business enterprises - equity joint ventures and non-equity joint ventures:
- An equity joint venture is created under corporate law and exists when two or more companies contribute capital to the venture. A qualifying L-1 relationship can exist between a contributing company and the resulting venture if the contributing company owns at least 50% of the venture and exercises control over the venture.
- A non-equity joint venture, on the other hand, is a contractual arrangement in which one or more of the contributing companies provides noncapital resources (e.g., manufacturing processes, patents, trademarks, managerial know-how, or other essential factors). A non-equity joint venture does NOT establish a qualifying L-1 relationship.
(e) Alien’s Qualifications . Detailed descriptions of the alien's prior year of employment abroad and of the intended employment in the United States are required from the petitioner to determine if the alien was and will be employed in a managerial, executive, or specialized knowledge capacity.
To document the alien's employment abroad and the alien's intended employment in the United States, a letter signed by an authorized official of the petitioner describing the prospective employee's employment abroad for the requisite one year and the intended employment in the United States, including the dates of employment, job titles, specific job duties, number and types of employees supervised, qualifications for the job, level of authority, salary, and dates of time spent in the United States during t he qualifying period. In cases where the accuracy of the statement is in question, the director may require other evidence, such as wage and earning statements or an employment letter from an authorized official of the employing company abroad.
(f)
Investigations . The adjudicator may not request an overseas investigation of the qualifications of a beneficiary of an L-1 petition if there are other grounds for denial of the petition. Any request for an overseas investigation must be accompanied by copies of the Form I-129 and supporting documents. (See Chapter 10.5 regarding overseas investigations requests.) Attach any report of investigation of the beneficiary's qualifications to the approved petition when it is forwarded to the consulate at which the visa application is to be made. Attach any report of investigation on the petitioner to the approved petition being forwarded to the consulate only if it might have a bearing on the visa issuance.
There is a high incidence of misrepresentation involving work experience gained in certain countries (see Appendix 30-2). Even so, when the adjudicating officer is convinced that the evidence substantiates the work experience for an L-1 nonimmigrant, the petition may be approved. The officer shall send all other L-1 nonimmigrant petitions for these countries for investigation.
All cases meeting the minimum threshold for articulable fraud must be referred to the Fraud Detection Unit (FDU) Intelligence Research Specialist (IRS) or
FDNS Immigration Officer (IO) on the standard Fraud Referral Sheet (FRS) per the instructions in the December 14, 2004 memorandum entitled Criteria for Referring Benefit Fraud Cases . Field offices will, without exception, submit requests for overseas investigations to the FDU IRS/FDNS IO via the FRS. The FDU IRS/FDNS IO will track all case leads in the Fraud Tracking System (FTS) and will report all findings of fraud to Adjudications using the standard Fraud Verification Memorandum.
(g) Approval . If the necessary supporting documents are present and the petition appears to be approvable in all respects, endorse the action block with the approval stamp. Indicate the petition validity dates and other action taken. The initial approval period is up to three years, except that if the petitioner is a start-up operation, the approval period is limited to one year. Extensions of stay are granted in two-year increments. The dates of employment (admission and extension periods) must be within the statutory limits for the L category: seven years for executive and managerial employment, five for specialized knowledge. Consider any concurrent extension or change of status request in accordance with the procedures described in Chapter 30. Closing actions include preparation of the approval notice (CLAIMS-generated), forwarding of the approved petition to the appropriate consulate (if applicable) and disposition of the file in accordance with local procedures. See 8 CFR 214.2(l)(14)(ii) for special requirements involving extension requests for “new office” cases.
(1) Intermittent L-1 Status . The limitations on the maximum stay in L status do not apply to aliens whose employment in the United States is seasonal, intermittent, or an aggregate of six months or less per year. In addition, the limitations do not apply to aliens who reside abroad and regularly commute to the United States to engage in part-time employment. The burden is on the petitioner and the alien to establish that the alien qualifies for an exception.
(2) Conversion from Specialized Knowledge to Executive / Manager Position . An L-1B specialized knowledge alien may change to an L-1A executive/manager to receive the benefits of the seven year limit of stay. The petitioner must have an I-129 petition approved in the alien's behalf as an executive or manager for six months to be able to receive the limitation of stay of seven years. This means that a specialized knowledge alien must have an I-129 approved as an executive or manager prior to his four and one half year period of stay in the United States. Remember that the work exp erience outside the U.S. does not have to be in the same capacity as the proposed employment in the U.S.
(h) Denial . Prepare and serve a formal denial order as described in Chapter 10.7 . Forward the petition in accordance with local procedures pending submission of an appeal or expiration of the appeal period. A denied petition for L classification is appealable to the Administrative Appeals Office.
(1) Discretionary Denial . Regulations do not provide appellate review of an alien's application for extension of stay. A decision to grant or deny the application is discretionary. Due process does not require USCIS to provide appellate review of the discretionary denial of an application for a benefit conferred on a nonimmigrant. When novel or unusually complex issues are presented, the application should receive supervisory-level review. An alien who believes that his or her application has been arbitrarily or erroneously denied may file a motion to reopen or reconsider the case, request certification, or seek judicial relief. A denial of the extension of stay application requires no determination of whether the beneficiary meets L-1 standards; therefore, there is no decision on the petition to appeal. However, the petitioner is not precluded from filing a new petition in the alien's behalf.
(2) Readjudication of L-1 Eligibility . In matters relating to an extension of nonimmigrant petition validity involving the same parties (petitioner and beneficiary) and the same underlying facts, a prior determination by an adjudicator that an alien is eligible for the particular nonimmigrant classification sought should be given deference. Cases where a prior approval of the petition need not be given deference are where: (1) it is determined that there was a material error with regard to the previous petition approval; (2) a substantial cha nge in circumstances has taken place; or (3) there is a new material information that adversely impacts the petitioner’s or beneficiary’s eligibility. For additional guidance on this issue refer to the William R. Yates memo of April 3, 2004 titled ”The Significance of a Prior USCIS approval of a Nonimmigrant Petition in the Context of a Subsequent Determination Regarding Eligibility for Extension of Petition Validity” .
The following are some exceptions to the above guidance on readjudication of L-1 eligibility:
· Anti Job-Shop Provisions . The L-1 Visa Reform Act, at section 412(a) of Pub. L. 108-447, Division J, Title IV, adds a new section 214(c)(2)(F) to the Immigration and Nationality Act, as amended (Act). New section 214(c)(2)(F) renders ineligible for L nonimmigrant classification a specialized knowledge worker if the worker will be “stationed primarily” at the worksite of an employer other than the petitioner or an affiliate, subsidiary, or parent and either (1) the alien will be “principally” under the “control and supervision” o f the unaffiliated employer, or (2) the placement at the non-affiliated worksite is “essentially an arrangement to provide labor for hire for the unaffiliated employer,” rather than a placement in connection with the provision of a product or service for which specialized knowledge specific to the petitioning employer is necessary . The new ground of ineligibility applies to all petitions filed on or after June 6, 2005. This includes petitions for initial, amended, or extended L classification. Thus, even if an alien worker holds or held L specialized knowledge status prior to June 6, 2005 and USCIS previously determined that the alien worker was eligible, the test for the new ground of ineligibility is to be applied to the petition. Adjudicators should not make a special effort to seek out these prior approvals, but should ass ess these anti-job shop concerns as new or subsequent petitions arise for adjudication in the normal course of business.
· Treaty investor classification and L-1 “new office” extensions . Additional scrutiny should be given to petitions where the initial petition is granted to allow the petitioner and or/beneficiary to effectuate a tentative or prospective business plan or otherwise prospectively satisfy the requirements for the nonimmigrant classification. This includes treaty investor classification which may require a petitioner to be actively in the process of investing a substantial amount of capital in a bona fide enterprise, and the L-1 “new office” extension petitions. See 8 CFR 214.2(l)(14)(ii) for special requirements involving extension requests for “new office” cases.
32.4 Blanket Petition Process.
(a) General . (Chapter 32.4(a) Revised [07/28/05]; AFM 05-26) The blanket petition program allows a petitioner to seek continuing approval of itself, its parent, and its branches, subsidiaries, and affiliates as qualifying organizations and, later, classification under section 101(a)(15)(L) of any number of aliens employed by itself, its parent, or some of its branches, subsidiaries, and affiliates. The program is restricted to relatively large international employers who are engaged in commercial trade or services. The petitioner is required to document that it meets certain criteria to file a blanket petition and to document the relationship between the qualifying organizations which will be included in the blanket petition. When the blanket petition is adjudicated, the decision relates onl y to these factors. Whether alien beneficiaries of the blanket petition qualify for L classification is later determined by a consular office when the alien applies for a visa or by a USCIS or
CBP officer if the alien is visa-exempt or applying for a change of status. An alien, who for one year in the previous 3 years has been employed by a qualifying organization as a manager, executive, or specialized knowledge professional, is eligible to transfer to the United States to a qualifying organization listed in the blanket petition as a manager, executive, or specialized knowledge professional.
Note: [Revised June 30, 2006] The L-1 Visa Reform Act at section 413 of Pub. L. 108-447, Division J, Title IV, modifies the eligibility requirements for L-1 intracompany transferees covered by a blanket petition filed pursuant to section 214(c)(2)(A) of the Act by amending section 214(c)(2)(A) of the Act to restore prior law requiring that the L-1 beneficiary of a blanket petition have been employed abroad by the L entity for a period of 12 months. Effective June 6, 2005, the Act eliminates the 6-month exception that had been the law for blanket beneficiaries since 2001. The restored one-year previous employment requirement applies only to an alien who is seeking initial classification as an L-1 nonimmigrant on the basis of a blanket petition filed w ith USCIS irrespective of when the blanket petition was filed. An alien who was classified as an L-1 nonimmigrant prior to June 6, 2005 on the basis of the blanket petition would continue to be subject to six-month employment requirement. The six-month rule should also continue to be applied to cases involving extensions or changes of job duties within the L classification filed on or after the June 6, 2005 effective date, but in which the original status was obtained through a L-1 blanket process prior to the effective date based upon the then-existing eligibility requirements.
(b) Eligibility Requirements . The petitioner must submit a statement signed by the company's president, corporate attorney, corporate secretary. or other authorized official describing the ownership and control of the organizations included in the blanket petition, accompanied by supporting evidence, such as the company's latest annual report, Securities and Exchange Commission filings, or another appropriate document which lists the company's parent and subsidiaries. The petitioner must also submit a written statement and appropriate evidence to document that it meets all four of the following criteria to file a blanket petition:
(1) All of the organizations listed in the blanket petition must be engaged in commercial trade or services. The petitioner's statement that the organizations provide goods and/or services for profit satisfies this requirement.
(2) The petitioner must identify in its written statement an office in the United States which has been doing business for a year or longer. The date that office was established should be indicated by the petitioner.
(3) Inclusion of three or more organizations in the blanket petition is adequate evidence that the petitioner has three or more domestic and foreign branches, subsidiaries, or affiliates.
(4) The final criteria may be met by the petitioner documenting any one of three factors:
• That it has transferred ten L-1 managers, executives, or specialized knowledge professionals to the United States in the previous 12 months. The petitioner should submit copies of Form I-797 to show this.
• That its U.S. subsidiaries and affiliates have a combined annual sales of at least $25 million. The petitioner's statement regarding the combined annual sales of its United States organizations may be accepted as evidence of the alternative criteria. A copy of the company's annual report may also provide this information.
• That the petition has a U.S. workforce of at least 1,000 employees. Likewise, the petitioner's statement regarding the size of its United States workforce may be accepted as evidence of the alternative criteria. A copy of the company's annual report may also provide this information.
(c) Approval . If the petition is approvable, notify the petitioner by issuing a CLAIMS-generated Form I-797, indicating the validity period. An initial approval is valid for three years and an extension (of the petition) is valid indefinitely, until revoked.
Note: The validity period in the case of a blanket petition is the period during which the alien beneficiary must apply for admission or be granted a change of status. So long as the petition is still valid on the date the otherwise eligible alien is admitted or granted change of status, he or she shall be given L-1 status for the full three years.
(d) Denial . Prepare and serve a formal denial order. Forward the petition in accordance with local procedures pending submission of an appeal or expiration of the appeal period. A denied petition for L classification is appealable to the Administrative Appeals Office.
(e) Certificate of Eligibility . Form I-129S, Certificate of Eligibility, is the form used exclusively for beneficiaries of blanket petitions. When a qualifying organization with an approved blanket petition seeks to transfer an L- eligible alien to the United States using its blanket approval, the qualifying organization completes this certificate of eligibility for the alien.
32.5 Individual Eligibility under Blanket Petitions.
(a) General . (Chapter 32.5) Revised [07/28/05]; AFM 05-26) The adjudication of individual eligibility for admission under a blanket approval is delegated to the consular officer where the alien applies for a visa. If visa-exempt, or when the alien is applying for a change of status, this adjudication is handled by the service center where the blanket was approved. The alien must provide the consular or USCIS officer the following documents to support eligibility for L classification:
· A letter from the prospective employee's employer abroad confirming his or her dates of employment, job duties, qualifications, and salary for at least the previous year.
· Records of educational training, degrees, and other pertinent evidence to document that the prospective employee is a specialized knowledge professional.
· An original and two copies of the I-129S (issued within the last six months) and the three copies of Form I-797, Notice of Approval of Blanket L Classification. (Only the original and a single copy of each is needed for applications filed with a service center.)
· Form I-539 , with fee, if applying for a change of status.
(b) Anti “Job-Shopping” provisions of the L-1 Visa Reform Act . As noted in Chapter 32.3(c) and (h)(2) of the AFM, the L-1 Reform Act, at Pub. L. 108-447, section 412(a) of Division J, Title IV, adds a new section 214(c)(2)(F) to the Immigration and Nationality Act, as amended (Act). New section 214(c)(2)(F) renders ineligible for L nonimmigrant classification a specialized knowledge worker if the worker will be “stationed primarily” at the worksite of an employer other than the petitioner or an affiliate, subsidiary, or parent and either (1) the alien will be “principally” under the “control and supervision” of the unaffiliated employer, or (2) the placement at the non-affiliated worksite is “essentially an arrangement to prov ide labor for hire for the unaffiliated employer,” rather than a placement in connection with the provision of a product or service for which specialized knowledge specific to the petitioning employer is necessary.
Several conditions must be met in order for this ground of ineligibility to apply:
First, the alien worker must be a specialized knowledge worker. The term “specialized knowledge” should be familiar to adjudicators and is defined at 8 CFR 214.2(l)(1)(ii)(D) and, with respect to professionals, at 8 CFR 214.2(l)(1)(ii)(E) . The change does not apply to other (i.e., managers and executives) L nonimmigrants.
Second, the worker must be stationed primarily at a worksite outside the L organization. Thus, so long as the worker is to be stationed within the L organization, this particular ground of ineligibility does not apply. Moreover, even if the worker is stationed outside the L organization, the worker must be “stationed primarily” outside the organization. We interpret this provision to mean that, as a threshold matter, in order for the section 214(c)(2)(F) bar to L classification to apply, a majority of the alien’s work-related activities must occur at a location other than that of the petitioner or its affiliates. In this regard, even if the majority of an alien’s time is physically spent at the petitioner or its affiliates’ location, to the extent that such time can be considered to be “down time” rather than time actually performing the services described in the petition, an alien might be subject to the section 214(c)(2)(F) bar (since, in this example, the majority of the alien’s actual work time is spent at an unaffiliated company or companies’ work site). The number of non-affiliated worksite locations where the alien might be stationed, by itself, is not relevant; what is relevant is the location where the alien will be actually be engaged in employment as specified in the underlying petition.
If the alien worker is “stationed primarily” outside the L organization, as described above, then there are two independent means by which the alien worker may be rendered ineligible for L status.
The first means relates to the control and supervision of the worker. Even if the alien worker is to be stationed “primarily” outside the L organization, that fact alone does not establish ineligibility for L classification. In order for the ground of ineligibility to apply, “control and supervision” of the worker at the non-affiliated worksite must be “principally” by the unaffiliated employer. Again, adjudicators should use the common dictionary meaning of the term “principally,” which means “first and foremost.” Thus, even if the non-affiliated entity exercises some control or supervision over the work performed, as long as such control and supervision lies first and foremost within the L organization, and the L organization retains ultimate authority over the worker, the ground of ineligibility does not apply. For example, an L-1 worker may be stationed primarily outside the L organization, but receives all direction and instruction from a supervisor within the L organization structure. The non-L or ganization client may provide input, feedback, or guidance as to the client’s needs, goals, etc., but does not control the work in the sense of directing tasks and activities. So long as the ultimate authority over the L-1 worker’s daily duties remains within the L organization, the fact that there may be intervening supervision or input between the worker and the L organization does not render the worker ineligible for L-1B classification.
The second means relates to the nature of the alien worker’s placement outside the L organization. Such an alien worker is ineligible for L classification if the placement at the unaffiliated worksite is “essentially an arrangement to provide labor for hire” for the unaffiliated employer rather than a placement in connection with the provision of a product or service for which specialized knowledge specific to the petitioning employer is necessary. What constitutes “essentially” such an arrangement is in herently a fact question, and adjudicators therefore must look at the all aspects of the activity or activities in which the alien will be engaged away from the petitioner’s worksite. In general, if the off-site activity or activities do not require specialized knowledge of the petitioner’s product or services, or if such knowledge is only tangentially related to the performance of such off-site activities, the alien will fall within the ambit of the section 214(C)(2)(F) bar. For example, an alien would be ineligible for L classification if a petitioner is essentially in the business of placing workers with various unaffiliated companies, irrespective of the alien’s specialized knowledge of the petitioner’s particular product or service, where the off-site activities to be performed do not require such specialized knowledge. On the other hand, if the petitioner is primarily engaged in providing a specialized service, and typically sends its specialized knowledge personnel on projects located on the work site of its unaffiliated clients to perform such services, then, assuming the alien remains under the principal control and supervision of the petitioning employer, and otherwise meets the basic requirements for L classification, the alien would not be subject to the section 214(c)(2)(F) bar.
(c) Adjudication . Adjudication is limited to beneficiary-related issues, e.g., the beneficiary’s qualifying experience and the nature of the proposed employment in the United States. If a question arises relating to the petitioner, the issue must be resolved through the revocation process, discussed in Chapter 30.11 . Policies and procedures for individual L-petition adjudication are equally applicable to blanket cases.
(d) Approval . Upon approval, endorse both copies of Form I-129S with the approval stamp and period of admission (up to three years, even if the blanket is due to expire sooner). Return the original to the applicant and retain a copy for USCIS records.
(e) Denial . If an individual applicant appears ineligible, notify the petitioner of the decision using a formal written order. An appeal may be filed by the petitioner in the same manner as an appeal from the denial of an individual L petition. See 8 CFR 214.2(l)(10) . If a consular officer denies such as case, no appeal is permitted; however, the petitioner may file an individual L petition in such a case. See 8 CFR 214.2(l)(5)(ii)(E) .
32.6 Technical Issues.
(a) Legal Entities . The United States and qualifying employer abroad must be legal entities. In the United States, a business is usually in the form of a corporation, partnership, or a proprietorship. When dealing with a smaller petitioning legal entity, evidence should be provided which establishes that there is a sufficient amount of employees to continue business operations in the foreign country, as well as continuing business operations in the United States once the beneficiary completes the temporary services and trans fers abroad.
The regulations at 8 CFR 214.2(l)(1)(ii) provide examples of the legal entities included under the L-1 classification. Evidence that the employer is a legal entity consists of evidence such as articles of incorporation, partnership agreement, license to do business, or evidence of registration with the Internal Revenue Service as an employer. In petitions involving well-known or publicly traded corporations, no such evidence should be required.
(b) Determining Whether a Qualifying Business Relationship Exists . For purposes of L-1 classification, ownership and control are the factors for establishing a qualifying relationship between business entities.
• Ownership means the legal right of possession with full power and authority to control.
• Control means the right and authority to direct the management and operations of the business entity.
The petitioner is required to identify each of the qualifying organizations as one of the types of entities specifically described in 8 CFR 214.2(l)(1)(ii): parent, branch, subsidiary, or affiliate. The petitioner must document ownership and control of both legal entities to establish that a qualifying relationship exists as defined in the regulations.
Stock certificates alone may not be sufficient to establish that a qualifying relationship exists. Documents such as the corporate stock certificate ledger, stock certificate registry, corporate bylaws, and the minutes of relevant annual shareholder meetings when appropriate, should also be examined to determine the total number of shares issued, the exact number issued to the shareholder, and the subsequent percentage ownership and its effect on corporate control. When appropriate, a petitioning company sh ould be asked to provide all agreements relating to the voting of shares, the distribution of profit, the management and direction of the petitioning company, and any other factor affecting actual control of the entity. Without full disclosure of all relevant documents, USCIS may be unable to determine the elements of ownership and control. See Matter of Siemens Medical Systems, Inc ., 19 I&N Dec. 362 (
BIA 1986). Evidence of the acquisition of the actual ownership interest (i.e., capital investment, wire transfers, stock purchase agreements, etc.) may be required as additional supporting evidence. See 8 CFR 214.2(l)(3)(viii).
The most common types of business relationships which are not qualifying under the L category are those based on contractual, licensing, and franchise agreements. Additional non-qualifying relationships include arrangements such as less than 50-50 joint ventures and charter membership arrangements. See discussions of various qualifying and non-qualifying relationships in Matter of Schick , 13 I&N Dec. 647; Matter of Del Mar Ben, Inc., 15 I&N Dec. 5; Matter of Aphrodite Investments, Ltd., 17 I&N Dec. 530; Matter of Tessel, Inc., 17 I&N Dec. 631; Matter of Barsai , 18 I&N Dec. 13 ; Matter of Hughes, 18 I&N Dec. 289 ; Matter of Siemens Medical Systems, Inc., 19 I&N Dec. 362.
Companies that are publicly traded and regulated by the SEC may submit copies of annual reports, where probative, as evidence of their affiliates and subsidiaries. Most annual reports will list the company's foreign affiliates and subsidiaries, along with the company's ownership interest (controlling, not controlling, joint venture, etc.). The annual reports are frequently prepared by major accounting firms and include audited financial statements. Evidence may also include copies of SEC Forms 10K and 10Q This will make L-1 processing easier for both USCIS and publicly-traded companies.
Where one or both of the qualifying entities has undergone or will undergo a corporate reorganization (e.g. merger, spin-off, acquisition, etc.), USCIS must determine whether the qualifying relationship between the entities will exist following the reorganization. USCIS should therefore review standard documents from the merger: the letter of intent, minutes from shareholder's meeting, the Hart-Scott-Rodino antitrust filings, as well as the ultimate contract. However, unless the company is publicly traded, there will likely be privacy concerns regarding proprietary information and finances.
(c) Doing Business . An L-1 petitioning company must be "doing business" as defined in 8 CFR 214.2(l)(1)(ii)(H) in the United States and at least one other country for the duration on the L-1 beneficiary's stay in the United States. In start-up operations, the business in the United States may be prospective in nature. Ordinarily, the viability of the U.S. employer may be demonstrated by the fact that the company has affiliate/subsidiary entities existing and operating under the laws of another country.
There may be instances where business is conducted through an agent rather than a separate legal entity. The mere presence of such an agent is insufficient to establish that the petitioner is doing business. The petitioner must establish that the entity conducts regular, systematic business (manufacturing, sales, services, etc.). A certified copy of the company’s most recent IRS Form 1120 , including all attachments and schedules may also be required. See discussion in Matter of Chartier, 16 I&N Dec. 284 (BIA 1977) . Matter of Thompson , 18 I&N Dec. 169 (Comm. 1981), which also discusses this issue, has been superseded by more recent regulations and should not be followed.
USCIS experience has revealed that a large number of suspect L-1 petitioners are operating as small import/export firms. If a company is doing business as an import/export firm, USCIS should require the firm to submit multiple examples of the customs forms that would be required in the normal course of business: Form 7525V (Shipper's Export Declaration), Form 7501 (Entry Summary), Form 301 (Customs Bond). The forms should include the importer's identification number. Other forms that would be required in the day-to-day business of an import-export firm would include invoices, shipping manifests, shipping insurance policies, bills of lading, letters of credit, wire transfer advisement, inspection certifications, sales contracts, and general business correspondence.
(d) Managerial or Executive Capacity . The discussion of managerial and executive capacity that follows provides guidance for applying the definition of these terms to specific case situations:
An executive or managerial capacity requires a certain level of authority and an appropriate mix of job duties. Managers and executives plan, organize, direct, and control an organization's major functions and work through other employees to achieve the organization's goals. Front-line supervisors, such as those who plan, schedule, and supervise the day-to-day work of nonprofessional employees, are not employed in an executive or managerial capacity, even though they may be referred to as managers in their particular organization. In addition, individuals who primarily perform the tasks necessary to produce the product(s) or provide the service(s) of an organization are not employed in an executive or managerial capacity. See Matter of Church Scientology International, 19 I&N Dec. 593 (Comm. 1988).
Eligibility requires that the duties of a position be primarily of an executive or managerial nature. The test is basic to ensure that a person not only has requisite authority, but that a majority of his or her duties relate to operational or policy management, not to the supervision of nonprofessional employees, performance of the duties of another type of position, or other involvement in the operational activities of the company. This does not mean that the executive or manager cannot regularly apply hi s or her technical or professional expertise to a particular problem. Certain positions necessarily require a manager or executive's application of his technical or professional expertise; adjudicators should therefore focus on the primary duties of the beneficiary.
An executive or manager may manage or direct a function within an organization. It must be clearly demonstrated, however, that the function is not directly performed by the manager or executive. If the function itself is performed by the intended manager or executive, the position should be viewed as a staff officer or specialist, not as an executive/manager. In general, classification in a specialized knowledge capacity is more appropriate for individuals who perform the duties associated with a function, rather than managing other professional employees or directing the activities or policies of the function.
If a small or medium-sized business supports a position wherein the duties are primarily executive or managerial the position may qualify under the L category. However, neither the title of a position nor ownership of the business are, by themselves, indicators of managerial or executive capacity. For example, a physician may incorporate his or her practice for business purposes and may hire a receptionist, bookkeeper, and a nurse to assist in that medical practice. For L purposes, the physician is not a ma nager, but a person who primarily practices his or her professional skills as a physician.
The L beneficiary who is coming to the United States to open a new office may be classified as a manager or executive during the one year required to reach the "doing business" standard if the factors surrounding the establishment of the proposed organization are such that it can be expected that the organization will, within one year, support a managerial or executive position. The factors to be considered include amount of investment, intended personnel structure, product or service to be provided, physic al premises, and viability of the foreign operation. It is expected that a manager or executive who is required to open a new business or office will be more actively involved in day-to-day operations during the initial phases of the business, but must also have authority and plans to hire staff and have wide latitude in making decisions about the goals and management of the organization.
(e) Specialized Knowledge Capacity . The alien should possess a type of specialized or advanced knowledge that is different from that generally found in the particular industry. See Appendix 32-1 for the text of the March 9, 1994, Memorandum from James A. Puleo, Acting Executive Associate Commissioner, Interpretation of Specialized Knowledge (providing examples and further guidance on the proper interpretation of specialized knowledge). The knowledge need not be proprietary or unique. Where the alien has specialized knowledge of the company product, the knowledge must be noteworthy or uncommon. Where the alien has knowledge of company processes and procedures, the knowledge must be advanced. Note, the advanced knowledge need not be narrowly held throughout the company. Further, there is no test of the U.S. labor Market in determining whether an alien possesses specialized knowledge. Only an examination of the knowledge possessed by the alien is necessary.
There are multiple examples outlined in the March 1994 memo. A common specialized knowledge theme is that the knowledge the beneficiary possesses, whether it is knowledge of a process or a product, would be difficult to impart to another individual without significant economic inconvenience to the United States or foreign firm. The knowledge is also not generally known and is of some complexity. The petitioner bears the burden of establishing through the submission of probative evidence that the alien's spe cialized knowledge is distinguished by some unusual qualification and not generally known by practitioners in the alien's industry. Likewise, a petitioner's assertion that the alien possesses an advanced level of knowledge must be supported by evidence describing and setting apart the knowledge from elementary knowledge possessed by others.
(f) Extent of Employment . It must be established that the alien will be rendering services to and employed by the entity inside the United States. The alien does not have to be employed by the U.S. employer on a full-time basis, but a significant portion of the alien's employment in the United States must involve managerial, executive, or specialized knowledge activities. Generally, activities such as conferring with officials, attending meetings and conferences, and participating in training are not considered productive employme nt and are appropriate for B-1 classification. Salary and source of remuneration are not issues relevant to L-1 petition adjudication. See Matter of Pozzoli , 14 I&N Dec. 569.
(g) Procedures for Calculating Maximum Period of Stay Regarding the Limitations on Admission of L-1 Nonimmigrants . (Revised 10-20-2005; AFM AD05-21) USCIS officers shall comply with the following guidance to determine whether periods of time spent outside the United States by an L-1 nonimmigrant worker in a specialized knowledge or a managerial or executive capacity will be recaptured:
(1) Periods of Time Outside the United States that May Be Recaptured for an L-1 Nonimmigrant Worker in a specialized knowledge or a managerial or executive capacity . Because section 214(c)(2)(D) of the Act states that “the period of authorized admiss ion for” an L-1 nonimmigrant admitted to render services in a managerial or executive capacity shall not exceed 7 years, or an L-1 nonimmigrant admitted to render services in a capacity that involves specialized knowledge shall not exceed 5 years, and becaus e “admission” is defined as “the lawful entry of the alien into the United States after inspection and authorization by an immigration officer” o nly time spent in the United States as an L-1 counts towards the maximum. Thus, upon requesting an extension, the L-1 nonimmigrant can request that full days spent outside the U.S. during the period of petition validity be recaptured and added back to his or her total maximum period of stay. As always, it is the applicant/petitioner’s burden to demonstrate eligibility, and appropriate evidence, such as copies of passport stam ps,
I-94 ’s a nd/or plane tickets must be submitted.
The applicant for extension seeking to recapture time spent outside the U.S. need not demonstrate that the time spent outside the U.S. was meaningfully interruptive of his or her L-1 stay. The reason for the absence is not relevant to the question of whether the time may be recaptured. Any trip of at least one 24-hour day outside the U.S. for any purpose, personal or business, can be recaptured. The applicant for extension must only demonstrate to the satisfaction of the adjudicator that he or she was ou tside the U.S. for the amount of time for which recapture is requested. Matter of IT Ascent, EAC# 0404753189 , was designated as bind in g policy guidance on October 18, 2005. While that decision only deals with H-1B extensions, Officers should refer to this decision as illustrative of the rationale for allowing recapture of any time spent outside the United States by L-1 nonimmigrants.
(2) Evidence . The burden of proof remains with the L-1 petitioner and/or the L-1 beneficiary to submit evidence documenting any and all exact periods of physical presence outside the United States when seeking eligibility for an extension of petition validity and extension of stay as an L-1 nonimmigrant. The petitioner and/or beneficiary are clearly in the best position to organize and submit evidence of the beneficiary’s departures from and reentry into the United States. While petitioners often submit a summary and/or charts of travel and the number or days spent out of the United States, which eases review of the accompanying documentation, petitioners are also required to submit independent documentary evidence establishing that the alien was outside of the United States during all the days, weeks, mon ths etc. that he or she seeks to recapture (e.g. photocopies of passport stamps and/or Form I-94 arrival-departure records).
The fact that the burden may not be met for some claimed periods, or has been met for some claimed periods, has no bearing on the remaining claimed periods. Any periods of time for which the burden has been met may be added to the eligible period of admission upon approval of the application for extension of status. An alien may not be granted an extension of stay for periods of time that are not supported by independent documentary evidence. A Request for Evidence should not be sent to the petitioner for any claimed periods unsupported by evidence .
In some instances, the alien may not be granted the entire period of time requested because the evidence submitted does not establish eligibility for the entire period of stay requested. In those situations, the approval notice should be issued for the period of time for which eligibility has been demonstrated.
The status of an L-2 dependent of an L-1 nonimmigrant is subject to the same period of admission and limitations as the principal alien. For example, if an L-1 alien is able to recapture a two-week business trip abroad for each year for five years in a row (for a total of 10 weeks), then his or her L-2 dependents, if seeking extension of stay, should be given an extension of stay up to the new expiration of the L-1 alien's stay. The statute and regulations allow L-2 status only "if [the dependents] are acc ompanying or following to join the beneficiary in the United States." If it appears that the dependent is not using or is not intending to use L-2 status primarily to accompany or follow to join the principal L-1 alien, such as a situation in which the principal only is physically present or intends to be physically present in the United States for a small proportion of his or her period of L-1 admission and the dependents are using L-2 status to evade the limitations on or eligibility rules of the nonimmi grant options that otherwise would be available, then the L-2 extension of stay may be denied, limited or revoked on notice giving the L-2 the opportunity to provide evidence of the intention primarily to accompany the principal.
Officers involved in the adjudication of L-1 petitions are cautioned that the examples provided in this memorandum are not all inclusive. Situations may develop in the adjudication of certain petitions, which will require the adjudicating office to use discretion. Therefore, decisions on petitions for extension concerning this issue that contain unique or novel circumstances may be certified to the Administrative Appeals Office for review.
(h) Decoupling Time Spent in L-2 Status from L-1 Maximum Period of Stay [Chapter 32.6(h) added 12-05-2006] .
(1) Time spent in L-2 status does not count against the five or seven-year maximum period of admission applicable to L-1A and L-1B aliens respectively. An alien who holds L-2 status (or who previously held L-2 status) and subsequently seeks to obtain L-1A or L-1B status is eligible for a maximum period of stay of five or seven years in L-1A or L-1B status respectively.
(2) In the context of any applications for change of status from L-2 to L-1A or L-1B, adjudicators should consider whether the L-2 alien complied with the requirements of accompanying or joining the L-1A or L-1B alien, and whether the alien otherwise maintained valid nonimmigrant status.
(3) USCIS may limit, deny or revoke on notice any stay for an L-2 dependent that is not primarily intended for the purpose of being with the principal worker in the United States, and a spouse or child may be required to show that his requested stay is not intended to evade the normal requirements of the nonimmigrant classification that otherwise would apply when the principal alien is absent from the United States.
USCIS (as well as port inspectors and consular officers) may adjudicate applications for dependent stays in order to prevent an L-1 alien from using only occasional work visits to the United States in order to “park” the family members in the United States for extended periods while the principal alien is normally absent.
For the most up to date text for the above mentioned Adjudicator's Field Manual Sections, please refer to:
http://www.uscis.gov/propub/ProPubVAP.jsp?dockey=724ce55f1a60168e48ce159d286150e2
