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Sunday, January 30, 2011

NEW OFFICE L-1 TRENDS IN ADJUDICATION

The following exchange between AILA and USCIS during a December 8, 2010 teleconference highlights the problem of USCIS adjudicators not taking sufficient time to clearly explain deficiencies in a petition for US immigration benefits.

It is not unusual to submit a petition to USCIS only to receive a lengthy Request for Evidence (RFE) or even a denial, neither of which includes a clear explanation as to what went wrong. However, as noted in the following exchange, USCIS adjudicators are trained and required to consider all evidence presented in support of a petition and clearly explain deficiencies in either a Notice of Intent to Deny (NOID) or a denial letter.

The following exchange also speaks to the requirements for “new office” L-1 intra-company transferee petitions. As the exchange between AILA and USCIS clearly shows, new office petitions are commonly granted for a period of one year, but the extensions of L-1status are being denied, based on a number of factors. These factors include the US enterprise not being sufficiently developed to support the need for a full-time manager or executive, or the US enterprise not following through with the commitments it made in the original petition.

Denials based on a U.S. enterprise not being sufficiently developed to justify the need for a full-time manager or executive are understandable, since this requirement is clearly stated in the regulations, but I find the “following through with the commitment” comment to be very curious.

I am not aware of any requirement that every “commitment” or “projection” set forth in the initial new office L-1 come to fruition in order to qualify for an extension of L-1 status. I think that many entrepreneurs would agree that a business plan, including initial projections, are inherently subject to change based on a number of factors, including market conditions, new opportunities, etc.

With that said, commitments/projections included in a new office L-1 petition should be selected carefully, since USCIS is clearly referring back to these to make determinations on the extensions. Failure to follow through will likely be perceived as a weakness in the case for an extension, so be ready to provide an explanation for any deviations from the original L-1 plan.

Highlights from the AILA and USCIS December 8, 2010 Teleconference:

AILA: AILA members are reporting Requests for Evidence (RFEs) and denials on two related issues respecting L-1A petitions:

In standard petitions, cases are RFE’d or denied for managerial and executive level positions on the ground that the beneficiary will be performing some non-managerial duties. However, under 8CFR 214.2(l)(1)(ii)(B) and (C) some non-managerial duties are clearly permitted, provided that the beneficiary performs primarily managerial or executive type duties. Could SCOPS (USCIS Service Center Operations Directorate) confirm that AILA’s interpretation is accurate and if so, could it issue guidance to the field respecting this critical distinction?

USCIS: SCOPS confirms the regulatory definitions of both “managerial capacity” and “executive capacity” indicate the employee primarily needs to perform the duties associated with those employment capacities. SCOPS will review current guidance and determine if additional clarifying guidance is needed.

AILA: In the context of New Office L-1s, AILA members are reporting denials stating that the petition failed to show, under 8CFR 214.2(l)(3)(v) that the new office will support the beneficiary in a primarily managerial or executive position within one year of approval. These denials appear to ignore evidence presented by the petitioner, pursuant to regulatory language, that the new office will support an executive or managerial position by virtue of (i) the proposed nature of the office, the scope of the entity, its organizational structure, and its financial goals (ii) the size of the U.S. investment and the financial ability of the foreign entity to remunerate the beneficiary and to commence doing business in the U.S., and (iii) the organization structure of the foreign entity. AILA understands that even with this evidence not every New Office L-1 will meet the test; however, AILA would like to ask that the adjudicators at least consider and analyze the submitted evidence and then, if a denial is in fact issued, articulate why the submitted evidence nevertheless feel short of the regulatory standard.

USCIS: Your interpretation, that the L-1 new office petition show that the business in question will support the beneficiary in the requisite managerial or executive position within one year of approval is correct. USCIS will, at the time any extension petition is filed, closely scrutinize the petition not only to determine whether this has occurred, but also to verify that the petitioner has followed through with the commitments in the original new office petition.

We share your concern that requests for benefits be adjudicated fully based on all the facts presented in a given case. To this end, adjudicators are trained and required to consider all evidence presented in support of a petition including the evidence required under 8CFR 214.2(l)(3)(v) for new offices. Adjudicators are also trained to explain clearly in a Notice of Intent to Deny (NOID) any deficiencies in the evidence submitted. Further, adjudicators are trained carefully to explain any deficiencies in the submitted evidence in a denial letter if a petition is ultimately denied. Petitioners that feel their evidence was not given appropriate probative value should seek review of the petition through normal review and appellate processes set forth in 8CFR 103.


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