| The L1 visa is one of the most popular vehicles by | | | | such as administration, marketing, public relations, and |
| which the owners of foreign businesses can obtain | | | | human resource management. |
| permanent status in the United States by expanding | | | | The USCIS is mindful that such non-qualifying duties |
| operations to the United States. The process is carried | | | | are required to get the new operation off the ground. |
| out in three steps: | | | | However, the applicable regulations grant a company |
| First, the initial L1 visa is issued for a period of one year | | | | only one year to accomplish this. By the time the |
| to set up operations of the new U.S. branch; | | | | renewal petition must be filed, these non-managerial |
| Second, the L1 visa must be renewed based (in part) | | | | and non-executive duties must have been transferred |
| on the first-year record of the U.S. branch; | | | | to locally employed personnel, working in actual |
| Third, once renewed, for an additional 2 years, the L1 | | | | physical offices. The size of the staff is not important; |
| visa holder may apply for permanent residency with | | | | only that it be adequate to cover the afore-mentioned |
| the support of the U.S. branch. | | | | essential functions. |
| It would not be an exaggeration to state that the | | | | In a typical case, this issue comes to light when the |
| USCIS often approves the initial L1 visa on a vision -- | | | | company or its lawyer receives a request for |
| supported by a well drafted business plan and a | | | | additional evidence (an "RFE") from the USCIS. The |
| convincing amount of money in the bank. However, if | | | | RFE usually requests a very detailed accounting of the |
| getting ones foot in the door seems easy enough, | | | | beneficiary's duties, a detailed organizational chart |
| renewal of the visa frequently turns out to be a | | | | showing the names of all individuals employed by the |
| nightmare for the applicant who -- more often than not | | | | U.S. company, as well as a detailed accounting of their |
| -- has uprooted hearth and home with the intention of | | | | duties, and payroll and tax records proving the locally |
| permanently relocating to the United States. | | | | employed employees. |
| Our firm has reviewed the decisions in all cases | | | | Upon receipt of the RFE, some companies try to |
| published in 2005 by the Administrative Appeals Unit of | | | | remedy the lack of essential personnel by quickly |
| the Department of Justice in which the USCIS denied | | | | engaging a few people solely to satisfy the RFE, or |
| a petition for L1A visa renewal. In 98% of these cases | | | | they attempt to justify the use off-shore personnel to |
| the reasons for the denial were virtually identical: | | | | cover these functions. A review of the published |
| 1. The petitioner did not establish that the beneficiary | | | | denials, however, reveals that such quick-fix attempts |
| will be employed in a primarily managerial or executive | | | | are a reason, in and of themselves, for the denial. Such |
| capacity; | | | | quick-fixes simply serve to demonstrate that the new |
| 2. The petitioner did not employ adequate or sufficient | | | | company has not reached the level of development |
| personnel. | | | | required at the one-year mark. In short, a petitioner that |
| 3. The petitioner did not establish physical offices; | | | | finds itself at the receiving end of an RFE questioning |
| The biggest mistake most applicants and/or their | | | | whether the beneficiary will be employed in a primarily |
| immigration lawyers make is to assume that the same | | | | managerial or executive capacity should seriously |
| duties that supported the initial visa petition will be | | | | consider other visa options. |
| sufficient to support the renewal. This assumption is | | | | In our opinion, the wisest course is to plan a renewal |
| fatal to a renewal case. This is because the duties an | | | | strategy as part of your initial case preparation. Aside |
| L1A beneficiary must undertake in the first year to | | | | from being a sound business practice, this course of |
| set-up operations must include - by necessity - | | | | action will go quite far to avoid any unpleasant and |
| non-managerial and non-executive essential functions | | | | potentially catastrophic surprises in the future. |