L-1A Intracompany Transferee: Making Sure to File it Right
November 25, 2014
In planning an L-1A visa petition for a foreign investor, it is essential to take into careful consideration several qualifying requirements. Below is a description of some of these qualifying criteria, which have in recent years caused L visa denials or requests for evidence. Navigating these criteria requires a high degree of sophistication and planning on the part of immigration counsel.
Executive vs. Managerial
These terms are often misunderstood, since the job responsibilities for each may share some commonalities. However, it is critical to remember that each has a distinct statutory meaning and purpose. For instance, an L-1A coming to the US to occupy an executive position may not necessarily have any supervisory roles. Hence, if the foreign national is entering the US to “direct” the petitioning company rather than supervising subordinate employees, a better argument exists that the L visa recipient will fill an executive, not a managerial position.
Whether the L visa argument is for an executive or for a managerial position, the immigration counsel should present visual evidence to illustrate the role of the L visa recipient in the petitioning company. Such evidence may include an organizational chart clearly showing how the foreign national will undertake his or her duties. If the foreign national will occupy an executive role, then the organizational chart should show the level of supervision the beneficiary will exert, whether internally within the organization or externally through the use of outside professionals.
For smaller organizations, the immigration counsel might present evidence by expert opinions from renowned professionals in the field who would opine that the foreign national would indeed occupy such roles.
Functional Managers L-1A visa regulations allow a foreign national to enter the US to oversee an “essential function” within the US enterprise. In such situations, the L-1A visa recipient is said to be a functional manager. However, extra care must be exercised when presenting such a case, as the foreign national must be positioned in a demonstrably higher-level position within the company’s organizational chart exerting wide latitude in the exercise of her daily tasks. In such a position, the foreign national should not directly oversee any staff. Rather, the functional manager exercises control over a major “function” such as fiscal matters, productivity, optimizing operations, or to commit the company in agreements by interacting with similarly situated higher-level professionals internally or externally.
L-1A Considerations for Small Companies
When reading the L-1A visa regulations and guidance memoranda issued by the USCIS, one cannot help notice that these provisions seem to describe larger international corporations. However, L-1A visa petitions may be submitted on behalf of smaller corporations as well. But in doing so, the immigration counsel must exercise extra caution in providing the USCIS with sufficient details on how each L visa criterion is met. It must be remembered that the USCIS will examine an L visa petition submitted by a smaller corporation more closely; in some ways, a smaller corporation has a higher burden in proving that all the qualifying criteria are clearly met.
Does My Small Company Require the Services of a Manager or an Executive?
When planning an L-1A visa petition for smaller companies, one of the biggest challenges is to show that such an organization requires the services of a higher-level executive or a manager. It is easy to foresee that in smaller organizations, the L-1A visa applicant might in fact have overlapping duties between executive, managerial and sometimes lower level duties. Immigration counsel must be keen in recognizing the dangers of such overlap in roles; as the USCIS might determine that an L-1A visa in such situations is not warranted because it believes the foreign national will primarily exert lower-level functions.
Luckily, USCIS rules provide some guidance in dealing with such situations. The test is whether the foreign national will “primarily” spend his or her time in higher-level managerial or executive duties. The USCIS has given examples of what it constitutes as lower level duties, which include the operation of machinery, engaging in sales activities, and in supervising lower level employees.
Hence, in planning an L-1A visa petition for smaller companies, it is critical to phrase the position description to conform to the guidance issued by the USCIS insofar as the primary duties are concerned. One may have to point to the secondary duties of the position within the realities of running a small business such as conducting sales, or performing lower level duties. If the company is starting with relatively few employees, it might be helpful to describe outside independent contractors such as lawyers, accountants, marketing consultants and other vendors wherein the L-1A visa recipient will exercise control over in order to carry out the mission of the enterprise.
Planning an L-1A visa petition requires a deep understanding of the adjudicatory posture of the USCIS and the various regulatory provisions. It must be remembered that the USCIS will pay closer scrutiny to petitions submitted for smaller companies. Hence, immigration counsel must be keen to present sufficient illustrative evidence to present a persuasive case for visa approval.