Immigration Insights: Top 3 Issues with L-1 Petitions

The L-1A and L-1B nonimmigrant visa categories enable a U.S. employer to transfer certain types of employees from one of its affiliated foreign offices to one of its offices in the United States, or to send certain employees to the United States to help establish an affiliated U.S. office. The L-1A classification applies to employees working in an executive or managerial capacity, while the L-1B classification applies to employees with specialized knowledge relating to the organization's business. Although it is difficult to predict exactly what a particular officer is thinking when reviewing L-1 petitions, below we share some actual Request for Evidence ("RFE") language from USCIS to provide insight into three issues which L-1 petitions commonly encounter.

1. One Year of Qualifying Employment Abroad

To qualify for L-1 classification, the beneficiary generally must have been working for a qualifying organization abroad for one continuous year within the three years immediately preceding his or her admission to the United States. It is important to note that USCIS is now looking for hard evidence of this employment, as shown in the RFE excerpt below: The statements made in petitioner's support letter regarding the start, and duration, of the beneficiary's employment with the foreign entity are not supported by documentary evidence in the record. Evidence may include, but is not limited to:

• Copies of the beneficiary's pay records;
• Copies of the beneficiary's personnel records;
• Copies of the beneficiary's training records;
• A letter from the beneficiary's supervisor(s) describing the beneficiary's experience with the foreign entity;
• A letter from the foreign entity's Human Resource Department that discusses the beneficiary's work history there.

1. Both the Foreign and U.S. Entities Continue to Do Business

To qualify for L-1 classification, the employer must currently be, or will be, doing business as an employer in the United States and in at least one other country directly or through a qualifying organization for the duration of the beneficiary's stay in the United States as an L-1. "Doing business" means the regular, systematic, and continuous provision of goods and/or services by a qualifying organization and does not include the mere presence of an agent or office of the qualifying organization in the United States and abroad. You must show that a qualifying foreign entity continues doing business. The foreign entity need not be the same entity that employed the beneficiary abroad. However, if the foreign entity which established a qualifying relationship to the U.S. entity is no longer doing business, you must establish a qualifying relationship between the U.S. entity and a different foreign entity which is doing business. The evidence you submitted is insufficient. The certificate of incorporation and articles of association only confirm that the foreign entity has been registered as a business entity. Further, documentation such as the company overview and online article lacks sufficient weight and reliability as evidence that the foreign entity continues to be actively engaged in the regular, systematic, and continuous provision of goods and services. The record does not establish that the foreign entity continues to do business. You may still submit evidence to satisfy this requirement. Evidence may include, but is not limited to, copies of:

• The most recent annual report which describes the state of the foreign entity's finances
• Recent foreign tax documents
• Recent audited financial statements
• Recent purchase orders
• Recent major invoices
• Recent bills of lading
• Recent third party license agreements
• Recent U.S. customs documentation
• Recent vendor, supplier, or customer contracts

USCIS is also concerned about the U.S. entity, and may ask for similar documentary evidence to prove ongoing operations. You must show the financial status of the U.S. operation. Evidence may include, but is not limited to:

• Audited financial statements, including balance sheet and statements of income and expenses describing normal business operations for the past year;
• Business bank statements that show business activity;
• Copies of any bank statements for the U.S. entity.

1. Qualifying Corporate Relationship:

To qualify for L-1 classification, the employer must have a qualifying relationship with a foreign company (parent company, branch, subsidiary, or affiliate, collectively referred to as qualifying organizations). To transfer an employee from a foreign entity to a U.S. entity as an L-1 nonimmigrant, a qualifying relationship must exist between the two entities. Qualifying relationships may occur between branches of the same employer, or amongst parent companies, affiliates, or subsidiaries. To show this relationship, you must provide evidence of ownership and control of these entities. For the purposes of L-1 classification, ownership means the legal right to have possession of an organization. Control means the legal or actual ability to exercise authority or influence over an organization. Evidence may include, but is not limited to, copies of:

• The most recent Securities and Exchange Commission Form 10-K, which lists all affiliates, subsidiaries, and branch offices, and shows percentage of ownership.
• The most recent annual report, which lists all affiliates, subsidiaries, and branch offices, and shows percentage of ownership.
• A detailed list of owners, which includes the foreign entity's owners' names, and what percentages they own.
• Meeting minutes, which list the stock shareholders and the number and percentage of shares owned.
• Articles of incorporation and bylaws, including all amendments.
• Your most recent income tax returns, which demonstrate the qualifying relationship with the foreign entity.
• The articles of organization or bylaws, with the names of members and percentage of membership interests.

Employers should also note that USCIS checks all L-1 petitions in its Validation Instrument for Business Enterprises (VIBE) system for relationships with other entities, including foreign affiliates (www.uscis.gov/VIBE). As L-1 petitions become increasingly scrutinized we hope the above provides some insight into what a USCIS officer is looking for when reviewing these petitions. Please note that RFE language is not always reflective of the actual immigration regulations; rather it may be the immigration service's particular interpretation of the regulations for that case. The above information is provided solely for educational purposes. Each case is different and we recommend that you seek proper immigration counsel to determine what is most appropriate for your situation. Special thanks to Clark Lau team member Paula Gergen for her contribution to this post.