September 25, 2013

The L-1A International company Transferee visa could be obtained by individuals who were employed for a minimum of one year during the past three years in a managerial or executive position in a foreign entity. These individuals are to be transferred to the U.S. branch, parent / subsidiary or affiliated entity in a managerial or executive position. These individuals can also be transferred to the U.S. for supervising the opening of a branch, parent / subsidiary or affiliated entity in the U.S.

In order for persons to be eligible for an L-1A visa; they are required to have managerial and/or executive position to perform services such as managing an organization, department and / or function; supervising and controlling the work of others; having the authority to make personnel decisions; establishing policies and goals etc.

L-1A applications that fail to provide sufficient supporting evidence to prove that the job duties that will be performed are managerial/executive in its nature may result in denials.

Administrative Appeal Office's (AAO) recent overturn of an L-1A denial illustrates that the functional manager concept still flys. In this case USCIS denied the L-1A petition due to the fact that the company employed only 2 subordinate personnel under the supervision of the L-1A manager. Petitioner appealed, and the AAO overturned the decision by stating that parent company's international department, which employs technical, sales, and administrative staff who are dedicated to supporting the growth of the group’s business in the Americas should be taken into account. Thus the fact that the U.S. company has only one sales manager and one customer service/administrative employee on staff should not lead to a conclusion that the petitioner would require the beneficiary, as vice president and chief operating officer, to perform day-to-day sales duties. Rather, the AAO stated, it is reasonable to believe that the petitioner will continue to rely on the support of the parent company's well-documented international team.

AAO's recent decision also reaffirms that the burden of proof in visa applications is the preponderance of evidence test. The AAO found that the petitioner proved by prepondarence of evidence that the majority of the day-to-day non-managerial tasks associated with the function the L-1A applicant are performed by his staff of ten direct and indirect subordinates and by external service providers.

When evaluating the L-1A applications, USCIS requires a clear demonstration and evidence from the petitioner that the U.S. company is in fact a branch, parent affiliate or subsidiary of a foreign entity as well as the job duties that will be performed by the L-1A Transferee is managerial/executive in nature. This is a heartening decision by the USCIS since L-1A aplications by small companies continue to face increased scrutiny by USCIS. It appears that inernational support staff in affiliated foreign entities who support the operations in the U.S. can be utilized to illustrate the managerial aspect of the L-1 petition.

Remzi Guvenc Kulen, Esq.