Strategies Dealing with EB-1 Retrogression

The recent visa bulletin retrogression in the Employment First Preference (EB-1) visa category has disrupted  the plans of many intending immigrants.  Historically the EB-1 visa category is usually current, meaning that an applicant does not need to wait for an available visa number to get a green card.  However, this advantage has reversed recently. For example, in September's Visa Bulletin, there are cutoff dates for all countries in the EB-1 category.  Most countries have retrogressed to 2016 while China and India have gone back to 01/01/2012.  

The EB-1 visa category was created for "priority workers" as a shortcut to obtain the U.S. permanent resident status. EB-1 priority workers include foreigners with extraordinary ability, outstanding professors and researchers, and multinational executives and managers.  

EB-1 visa applicants should adjust their plans accordingly in light of the recent visa retrogression.

The Visa Office has predicted that EB-1 will not likely to return to current status until at least December 2018 or even 2019.  Hence, for those visa applicants who are in the U.S., they must maintain their status while waiting for their priority dates to be current.  Normally, when a visa applicant's priority date is current, he may file the I-140 visa application concurrently with the I-485 application to adjust status.  A person with a pending I-485 application is allowed to remain in the U.S.

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The current immigration policy does not allow filing of the I-485 adjustment application unless there is a current priority date.  (Note: Surprisingly, USCIS has indicated that I-485 applicants may follow the Filing Date Chart in October.)  Hence, an EB-1 visa applicant must seek other avenues to stay in the U.S. during retrogression. For extraordinary ability applicants, the O visa status is a logical choice. For multinational managers, they may apply for the parallel nonimmigrant L-1A visa.  The H-1B temporary work visa is another possibility.  For short term stay, one may also consider the B1/B2 visitor visa.

An applicant should depart the U.S. if there is no viable way to stay.  Staying in the U.S. without legal status could have serious consequences including being banned from returning to the U.S. for a period of time.  There is some legal relief for employment based applicants if their lapse of status is less than 6 months but the best strategy is to avoid any unlawful status altogether.

Even being outside of the U.S. one may continue with the immigrant visa application process.  For example, he may respond to a formal Request for Evidence from USCIS while abroad. After the I-140 visa petition has been approved and when the priority date becomes current, the visa applicant will be able to apply for an immigrant visa from an American Embassy to return to the U.S.

In the newly-released October's Visa Bulletin, the Employment Second Preference (EB-2) is actually back to current for most countries except India and China.  Hence, eligible applicants may also consider filing a petition under the EB-2 category.  For example, an EB-1 extraordinary ability applicant may also file an EB-2 petition with a request for a national interview waiver (NIW).

Timing is another critical issue to consider.  For example, premium processing service is still available to L-1A multinational manager petitions, allowing these applicants to extend their nonimmigrant status quickly.   However, premium processing service has been suspended for most H-1B petitions.  Still there are automatic extension rules that allow certain H-1B workers to continue working in the U.S. once an extension or change of employer petition has been filed.   Similarly, when a foreign  applicant submits a non-frivolousness application to change or extend his nonimmigrant status in stay in the U.S., he is generally allowed to remain in the U.S. until a decision is issued.  The application must be properly filed with all required documents before his current status expires.

Even if an EB-1 visa applicant already has an I-485 application pending, it is still a good idea for him to maintain his nonimmigrant status such as L-1A, H-1B, O, etc.   If the adjustment application is denied for whatever reasons, he would still have an nonimmigrant status to fall back on.  While premium processing is available to most I-140 petitions, it is is not available to the EB-1C multinational managers petitions and the regular processing time now is up to about one year.  Hence, one should carefully plan and time his applications.

Multinational Manager Green Card "1-in-3" Rule Tightened

Multinational managers seeking a green card under the EB-1C classification will fail if there is a gap in employment in excess of two years with the petitioning company after entering the U.S., according to a recent Policy Memo issued by USCIS dated March 19, 2018.

What is the EB-1C immigrant visa status? It can be used by a multinational company seeking to bring a high-ranking executive or managerial employee to work permanently in the United States. The employee would normally be transferred from their position in a foreign affiliate to the U.S., although he or she could already been working for the U.S. company in an nonimmigrant visa status. Approval of the EB-1C visa status would make the employee eligible for a U.S. green card. But don't confuse EB-1C with the related non-immigrant L-1A employment visa status, which is temporary in nature.

Aside from proving the employee's eligibility as an executive or managerial worker, there are further requirements to attain the EB-1C visa status. The "one-in-three" rule imposes strict guidelines on the beneficiary's employment time frame. The rule requires that the beneficiary must have worked at least a year for the petitioning company's foreign affiliate within the last three years prior to admission to the United States.  USCIS has interpreted this rule to mean that the three-year reference period is the three years immediately prior to the date of admission of the worker.  Hence, the employee could already be working for the U.S. company for three years and still be eligible for an EB-1C visa. 

A recent USCIS AAO decision, Matter of S-P-, Inc., (adopted as policy memo) further clarifies that any periods of employment under a different company or even unemployment after the date of admission could break the "1-in-3" rule for EB-1C petitions.  Specifically, this means that once the transferee worker arrives the U.S., if he or she stops working for the affiliated U.S. petitioning company for longer than two years, the worker will no longer be eligible for EB-1C status.

It is important to note that the old rule still applies. In other words, if there is no discontinuity between working for the foreign affiliate and the petitioning company, there is no need to worry about the one-in-three rule when applying for EB-1C. Also, the date of entry looked at has to be for the purpose of working for the multinational company. Other date of entries do not qualify. Claiming an older date of entry as the starting point for counting one-in-three years of employment does not work. This is regardless of whether or not the beneficiary worked the year before the date of entry -- once there is an interruption of employment, only the time frame of the most recent three years is looked at.

This may seem complicated at first, but it makes sense when looking at the purpose of EB-1C status. It is meant to help U.S. companies bring in key employees from their foreign affiliates to support the business. Having large gaps between working for the two associated companies detracts from the employee's credibility as a long-term and high-level executive or manager. 

Those seeking the similar L-1A nonimmigrant visa could also face the same restrictions. Although not specifically mentioned, USCIS will likely apply the same rationale when dealing with employment interruptions in adjudicating the L-1A applications. This ruling reminds multinational companies to plan on a longer time scale when it comes to moving their key employees to the U.S. 

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.  

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.  

Premium Processing Service unavailable to EB1-3 Multinational Transferee Petitions

In a recent meeting with AILA, USCIS advises that it does not anticipate expanding Premium Processing Service to include multinational executives and managers immigrant visa petitions (I-140) in the near future. (11/14/2012 SCOPS meeting)