A blog about U.S. immigration matters by Paul Szeto, a former INS attorney and an experienced immigration lawyer. We serve clients in all U.S. states and overseas countries. (All information is not legal advice and is subject to change without prior notice.)

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Monday, January 9, 2017

Intercompany Transferee L-1A Visa Or Green Card for Smaller Businesses

Two recent AAO decisions illustrate the particular challenges that small businesses face when applying for the multinational executive and manager visa - whether it be the temporary L-1A work visa or the permanent employment EB-1C immigrant visa.  

The visa applicant in the first case, Matter of B-R- Inc., is the owner of a business that operates two convenience store/gas stations.  The denial of his petition for an EB-1C immigrant visa (green card) was upheld by the AAO (Administrative Appeals Office).  The reasons cited for the denial are the vagueness and generic nature of the owner's job duties, as well as the insufficient staffing at the U.S. business. For 2015, the business had 11 employees.  The employee's average salary was $16,303 (petitioner's salary was $30,000).  After some analysis, the AAO concluded that it was not possible for the 11 employees to operate the two stores with a combined 32 gas pumps, several coffee counters and cashiers, etc., 24 hours a day, seven days a week. The $30,000 was also insufficient to support applicant's executive/managerial position.  Most significantly, AAO held that the petitioner company does not have enough employees to relieve the owner-applicant of his operational duties.  

Perhaps the most important message of this decision is AAO's declaration that just because the beneficiary manages and directs or even owns a business, it does not follow that he qualifies as an intercompany transferee manager.  Although not explicitly mentioned in the case, the business owner was likely to be already a L-1A visa holder.  Hence, this case also illustrates that prior approval of one's L-1A petition does not necessarily mean that his EB-1C immigrant visa will be approved. 

In the second case, Matter of A-S-, Inc., the AAO denied a L-1A petition filed by a new car wash business on behalf of its CEO. This is a "new office" and the petitioner has to prove that the U.S. business will be able to support the CEO position after one year in terms of finances and organizational needs.  When compared to the first case, this business is larger and employs more employees. In fact, the petition states that the car wash business is only a stepping stone for the enterprise to invest in the real estate development business.  The reasons for denying the L-1A petition are similar, i.e., the job duties are not detailed enough to support an executive and/or managerial position, and there is also insufficient evidence to establish that the CEO will be relieved of his non-qualifying operational duties.  

Arguably the second case is a stronger case - The L-1A petition actually contains more detailed job descriptions and there is evidence of 24 employees already on the payroll.  The AAO denied the case based on several inconsistencies and lack of clarify in several aspects of the evidence.  For example, there are inconsistencies regarding the transfer of funding from the parent company to the beneficiary's personal accounts and to the U.S. business accounts.  There is also a lack of details and planning regarding the real estate venture that the business will get into. Although the organizational chart in the I-129 L-1A petition indicates that the business employs 40 employees, the actual payroll record only shows 24 employees.  These inconsistencies cast doubt about the credibility of the petition as a whole.  Perhaps the main cause for the denial is the added complexities of the real estate business which the new business was not ready for.  

Small businesses face more challenges and scrutiny when filing for intercompany transferee visa petitions.  Despite these two non-precedent decisions, it is still possible for smaller businesses to obtain L-1A and EB-1C approvals.  These decisions illustrate the importance of having sufficient professional and administrative employees, adhering to a realistic and focused business plan, as well as providing clear and detailed job duties for the beneficiary.  

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