A recent decision from the USCIS Administrative Appeals Office (“AAO”) provides some fresh insight for international companies seeking to transfer executives or managers under the L-1A visa from one affiliated foreign office to open new offices in the U.S. and keep their fledgling offices in business after the initial year.

“New office” petitions for L-1A visa status and extensions of such status can be fraught with uncertainty, as different United States Citizenship and Immigration Services (“USCIS”) adjudicators and Customs and Border Protection (“CBP”) personnel often reach different results in seemingly similar cases. An August 2013 report issued by the Office of Inspector General (“OIG”) of the Department of Homeland Security (“DHS”), reflects official concern, stating that new office petitions and their extensions “are inherently susceptible to abuse because much of the information in the initial petition is forward-looking and speculative.”  USCIS adjudicators and CBP personnel are likely to review new office L-1A petitions skeptically, but a recent agency appellate ruling offers some encouragement to employers.
In Matter of X, WAC 13 103 50466, Sept. 13, 2013, AAO withdrew the denial by the USCIS California Service Center (“CSC”) of a petition seeking to extend the L-1A status of an individual who had been working for one year in the U.S. as Vice President and Chief Operating Officer for the U.S. subsidiary of a parent company.  After one year of working in L-1A status, 8 C.F.R.§ 214.2(1)(l4)(ii) provides that the new office visa petition may be extended by filing a new Form 1-129 with USCIS accompanied by certain evidence, including evidence that the individual has been working in a managerial capacity.  AAO’s review of CSC’s denial focused on whether the petitioner had established it would employ the beneficiary in a qualifying managerial capacity.
CSC denied the petition even after the petitioner expanded on the managerial duties of the beneficiary and identified the beneficiary as a “function manager.”  The petitioner supplied evidence as to the beneficiary’s position within the organizational hierarchy, the depth of the petitioner’s organizational structure, the scope of the beneficiary’s authority and its impact on the petitioner’s operations, the indirect supervision of employees within the scope of the function managed, and the value of the budgets, products, and services that the beneficiary manages.  CSC’s decision, though, was based primarily on the staffing levels of the U.S. company, rather than that of the larger organization and its “reasonable needs,” as well as its conclusion that the small size of the U.S. staff must mean that the beneficiary performs day-to-day duties, including “sales” duties, of the U.S. operation.
In its decision, AAO took a far broader perspective in assessing the reasonable needs of the international organization.  It noted that the beneficiary is charged with managing the implementation of all goals, policies, strategies, and objectives pertaining to the import and distribution of the parent company’s specialized products into the U.S. market and high-level planning for the new U.S. subsidiary’s further expansion.  AAO found that the beneficiary has been given significant discretion in decision-making, working closely with the parent company’s executives in determining the direction of the business in the United States and the Americas.   Significantly, AAO noted that the size of the U.S. staff is not dispositive and does not necessarily force a conclusion that the beneficiary’s duties are non-managerial.
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Photo of Forrest G. Read IV Forrest G. Read IV

Forrest Read is a Principal in the Raleigh, North Carolina, office of Jackson Lewis P.C. He has extensive experience in both business immigration law and employment law and has particular focus in legal issues in graduate medical education (GME).

Mr. Read’s immigration practice…

Forrest Read is a Principal in the Raleigh, North Carolina, office of Jackson Lewis P.C. He has extensive experience in both business immigration law and employment law and has particular focus in legal issues in graduate medical education (GME).

Mr. Read’s immigration practice focuses on assisting employers in obtaining employment-based nonimmigrant visas (e.g., H-1B, L, O, TN) for foreign national employees and work-related immigrant (green card) visas, including PERM Labor Certifications, and advising employers on compliance with U.S. immigration laws and regulations. He has broad experience in advising large, mid-size and small employers on their various immigration needs and developing strategies to help them navigate through complex immigration issues. He also has particular experience in counseling employers in the health care industry and addressing immigration-related issues that arise for their broad range of health care professional employees (including advising on and obtaining employment authorization for medical residents and fellows and obtaining J-1 visa waivers for foreign national physicians completing their medical training in the United States). His immigration practice also includes defending employers in connection with Department of Labor H-1B and H-2B investigations.

Mr. Read’s employment law experience includes representing management, particularly academic medical centers in the GME context, in a wide array of workplace disputes and litigation before federal and state courts and administrative agencies, including matters related to discrimination, retaliation, harassment, disability, family and medical leave, various wage and hour issues, contracts, and intentional torts. He advises academic medical centers on the interplay between applicable academic law and employment law and the ramifications of what are divergent legal requirements and standards. Mr. Read also provides counsel with respect to the legal impact of competency standards for residents and trainees in GME, including situations involving discipline, remediation, and dismissal. He provides advice and guidance in the peer review process, including provision of verification and assessment of training in response to third party inquiries.

As a member of the Firm’s Corporate Diversity Counseling group, Mr. Read also has experience in providing assessments and making recommendations to corporate and institutional clients with respect to diversity and inclusion policies and initiatives, conducting related internal investigations, and shaping, developing and enforcing effective policies and initiatives to ensure consistency with client values and in furtherance of business goals and objectives.