A blog about U.S. immigration matters by Paul Szeto, a former INS attorney and an experienced immigration attorney and counsel. Contact Info: 732-632-9888, http://www.1visa1.com/ (All information is not legal advice and is subject to change without prior notice.)

Tuesday, April 4, 2017

3 Recent L-1A Denials Illustrate Strict Adjudication Standards

The L-1A multinational company transferee visa is an important tool for international companies to transfer key employees to the United States from overseas.  The legal requirements for approving this visa category are strict and in recent years the DHS has also gradually tightened its adjudication standards.   The Administrative Appeals Office (AAO) of USCIS has illustrated that the L-1A visa is not automatically granted for small entrepreneurs who have started their business in America. Recently the AAO has denied three L-1A applications based on the establishment of new offices in the United States.

In Matter of R-D-M- LLC, the petitioner's plan was to provide tablet computers to hotels and other businesses. While customers can use the tablets to book appointments, order meals or post information on social media, the petitioner would derive revenues from advertisements placed on these devices.   The L-1A petition was denied because the petitioner failed to provide sufficient evidence to establish that the overseas transferee will function as a L-1A manager. There was  no detailed timeline for hiring employees and their job duties were also unclear.  There were also inconsistencies in the application documents.  Further, the petitioner also failed to provide evidence of sufficient office premises to house the 14 employees that they planned to hire.

In Matter of G-C-C LTD, the petitioner sought to transfer a manager for a spa that offers nail manicure and massage services.  The petition was denied because AAO believed the manager's primary responsibilities were not managerial in nature. Although the manager would have high level of authority over the business and employees, his duties were mostly administrative in nature rather than focused on setting up policies and goals of the business.  Further the employees were mostly nail technicians and masseuses who were not managers or professionals themselves.  The L-1A petition also contains some references to a hotel, which is inconsistent with the petitioner's business.  It appears that the petition was not professionally and adequately prepared.  

In Matter of T-T-LLC, the petitioner, an importer and wholesaler of organic an gourmet foods, plans to transfer an overseas employee to serve as the CEO of its new office in the U.S.  The AAO denied the L-1A petition for several reasons.  First, the job duties of the CEO were not found to be executive or managerial in nature.  For instance, the AAO was not convinced that the CEO would have to spend 10 hours per week to train the few salespersons and administrative staff of the new office.  Further the CEO's duty of visiting customers was also not found to be executive in nature.  The AAO was also troubled by the fact that one of the salesperson had his owned limited liability company, which cast doubts about the alleged employer-employee relationship.  In short, the L-1A was denied because there was a lack of evidence to show that the company's structure would show that the petitioner would focus his time on executive and managerial responsibilities. Another reason for denial was the lack of evidence that there would be sufficient funding to support the financing of the new office.  

These denials once again highlights the strict adjudication standards of the L-1A and the related EB-1C visa petitions.  It is extremely important for the petitioner to provide a well-supported petition with evidence of a well-staffed organizational structure and concrete business plan.  Further, extra care must be taken to ensure that there is no inconsistent or contradictory information within the application.  

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