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EB-1 Intracompany Transferee: AAO Case Decision re Entrepreneurs

It is invaluable to stay current with recent and relevant case law in order to have a true understanding of the way immigration law is applied in the real business world. A recent decision issued by the USCIS Administrative Appeals Office (AAO) June 13, 2013 was about a case involving an entrepreneur who applied under the First Preference Employment Based(EB-1) immigrant visa petition as a multinational executive or manager.

If you are an entrepreneur desiring to operate a business in the United States and acquire legal status or permanent residence, contact The Law Firm of Shihab & Associates for a consultation with a Columbus immigration attorney about the facts and strength of your immigration case. Our lawyers have over 50 years of combined legal experience in a wide variety of complex and immigration law matters. Attorney Gus M. Shihab has lectured investors internationally and is well versed in innovative immigration solutions to meet your objective.

You must know that recent initiatives undertaken by the US government makes it easier for foreign entrepreneurs to acquire legal status to run their investment enterprise and to apply for permanent residence.

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In this recent case, the AAO Court issued a favorable decision toward the foreign national entrepreneur and established four important points. The court's decision illustrated that although it may seem upon cursory review that some entrepreneurs do not meet the black letter law qualifications, upon closer examination and application of real-world principles they do. A good attorney should be able to recognize these distinctions and use them to the entrepreneur's advantage.

The parties’ names this case were redacted, however we do know that the petitioning US company was conducting business in ground transportation in Illinois and was incorporated in 1997. The petitioning company had filed an EB-1 intracompany transferee visa petition on behalf of the beneficiary, who was the entrepreneur in this case, being the majority shareholder of the foreign company and the US company. Originally, the USCIS adjudicator (or “director”) denied the petition on four separate grounds.

The petitioner appealed to the AAO Court, which reversed the denial and explained how the entrepreneur did meet all four grounds as follows:

  1. The term “employee” is defined by the person's duties and responsibilities;
  2. The company’s “reasonable needs” are not defined by its size alone;
  3. The foreign company is still considered to be “doing business” when the owner resides in the US;
  4. The one-year timeline is not broken by a change in the company’s ownership and management.

An “Employee” Is Defined by Duties & Responsibilities

The director held that since the petitioner did not present evidence to establish that the US company had supervisory control or ability to hire and fire the entrepreneur that he did not qualify as an “employee” under the definition. The AAO did not agree and held that although the petitioner did not show there was a board or individual having supervisory authority over the entrepreneur, the focus of the criteria should be concerning the duties and responsibilities of the entrepreneur, not his/her employment status.

A Company’s “Reasonable Needs” Are Not Defined by Its Size Alone

The director concluded that the US company did not have a need for the entrepreneur to work as a manager because the director determined that the company lacked the organizational complexity required since there were only eight employees. The AAO disagreed and held that the director should have taken into account additional factors to determine the company's organizational complexity because the number of employees or size of the company alone is not enough to conclude a manager is not needed.

A Foreign Company Is Still “Doing Business” When the Owner(s) Reside(s) in the US

The director determined that the foreign company was not doing business abroad because the entrepreneur and his wife owned the foreign company and resided in the US. The AAO disagreed with the director and held that the foreign company was still doing business because the petitioner had submitted sufficient evidence showing the foreign company’s real estate, business contracts, 52 employees, and photographs of the premises.

The One-Year Timeline Is Not Broken by a Change in the Foreign Company’s Ownership & Management

The director originally determined that the foreign entity had not been doing business for the one-year required period because the entrepreneur bought the US company during that period. The AAO did not agree and said that the director's determination was wrong as a matter of law because a change in ownership and management is irrelevant as to whether the company has been doing business as defined by law, which is “the regular, systematic, and continuous provision of goods and/or services by a firm, corporation, or other entity.”

If you have any questions about immigration opportunities and pathways for entrepreneurs or any of the other immigration matters, please contact our immigration attorneys at The Law Firm of Shihab & Associates to schedule a consultation with an attorney at an office near you.

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