Articles Posted in Nonimmigrant Visas

It has long been a concern for L-1A clients of whether their visas will be extended after the first year on the visa when establishing a New Office branch in the U.S. We have advised our clients and all of our prospective New Office L-1A clients that they must meet strict standards within one year, or risk not having their L-1A status extended. While it may not be reasonable, it is pragmatic. To do otherwise would potentially waste considerable client resources invested in establishing a new office that may not be viable if the key employee (sometimes the owner) is forced to leave the US. Time and again we have seen the California Service Center hold these cases to a stricter standard than what is required of the law. In many instances, the decisions from CSC would simply ignore evidence presented to them that our clients fulfilled the role of an executive or manager of the company. In those cases, an appeal of the case through a motion to reopen proved to be the only way to get the case overturned.

Recently, the AAO rebuked the California Service Center’s (CSC) stubborn refusal to properly apply the law for new office Executives and Managers who seek an extension of status beyond the initial one year. This case goes even further than recent decisions that simply “reversed” the CSC and remanded the matter. In this case, the AAO Approved the Extension request, and in so doing articulated affirmatively what the legal standards are for New Office L-1A Managers who seek an extension beyond the one year.

The case, Matter of Z [the case is as yet unnamed by the AAO], FILE: WAC 13 103 50466, involved a newly formed US corporation (Petitioner) that is the wholly owned subsidiary of a Japanese parent that provides packaging solutions in the food, beverage and pharmaceutical industries. Petitioner was created to test the “American” (North and South) market for import, distribution and sale of products, as well as to evaluate feasibility of establishing a manufacturing facility in the US.

Over the past couple of years, the immigration service center has increased the number of requests for evidence (RFE) they issue on most non-immigrant worker visas. Recently, our office got approved a request for evidence on an L-1B, intracompany transferee specialized knowledge.

The L-1B, intracompany, transferee specialized knowledge visa is used by companies transferring an employee to the US company to work in a position that, as you might have guessed, requires specialized knowledge. The requirements are pretty vague, since immigration defines specialized knowledge as “information and experience about the company’s products, services, research, equipment, techniques, or interests and their applications in international markets. A “specialized knowledge” employee has an advanced level of knowledge or expertise in the organization’s processes and procedures.

This specialized knowledge must be required to carry out the duties of the position with the U.S. affiliated company.” It becomes the burden of the petitioner to demonstrate how the employee in question holds specialized knowledge of the company’s products, services, equipment and so forth. This burden can prove difficult at times since it is usually clear to the employer why the person they are seeking to transfer to the US office has the specialized knowledge.

Part of a successful petition for an L-1B visa is demonstrating that the company’s product, services, equipment, or interests require specialized knowledge, the employee has the requisite specialized knowledge and no one else in the US or foreign office has that knowledge or can easily attain that knowledge to carry out that role.

Our client came to us because the initial filing on their L-1B petition received an RFE asking for additional evidence to establish how the beneficiary met the requirements of an employee with specialized knowledge. The RFE was lengthy since it questioned everything about the petition from the position’s requiring specialized knowledge to the companies meeting the transfer requirements.

Qualifying relationship between the companies

The first points to address were the qualifying relationship between the companies for transferring the employee. In particular the RFE requested documentation to establish the relationship through the submission of documents like stock certificates, bank statements, wire transfers, stock ledgers, and so forth. It was also requested that a breakdown of the ownership of the foreign company be submitted to demonstrate that the US company was the parent company. By providing these documents in the initial petition, the issue would not have been raised, but in some cases where ownership changes hands it becomes difficult for immigration to determine that the relationship still exists. In our case it was possible to show through those documents that the relationship still existed between the parent and foreign company.

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A recent liaison meeting with the Customs and Border Protection unit in San Diego provided some clarification on some recent issues with nonimmigrant visas. Below are some questions and answers on some of the nonimmigrant visa issues that were raised at the meeting.

B-2 Admissions – Length of Aggregate Admission in One Year

AILA members report that CBP officers are instructing applicants for admission as B-2 visitors that they are limited to a total period in the United States of no more than six-months in one year. Nonimmigrant aliens who apply for admission as B-2 visitors are being questioned regarding the number of occasions on which they have been in the United States to confirm that the alien has not exceeded 180 days. The U.S. Department of Homeland Security (DHS) regulation, however, does not limit admissions to a total of six months within one year.

The question asked at the liaison meeting was that if an alien is otherwise admissible as a B-2 visitor for pleasure, a CBP officer should not limit the admission of that alien to 180 days in a twelve-month period. Can this be confirmed?
CBP responded that if an alien applicant is otherwise admissible as a B-2 visitor, and passport validity requirements are met, the applicant can be issued more than one 180-day admission period in a 12-month period.

Another question asked was, assuming an individual is otherwise eligible for admission, please confirm that eligibility for admission as a visitor is determined by the nature and expected duration of the intended activity in the U.S.

CBP responded that alien applicants for admission in the B-2 classification are determined to be eligible for that classification based on the purpose of their visit to the U.S., as well as the anticipated period of stay.

It was further noted at the liaison meeting that while previous presence in the U.S. is a relevant factor in determining whether an alien maintains a residence abroad that he or she has no intention of abandoning, please confirm that inspecting CBP officers should not focus solely on the amount of time an individual has previously spent in the United States to determine eligibility for admission as a visitor.

CBP responded that all nonimmigrant applicants seeking admission as B-2 visitors are required to satisfy the inspecting CBP Officer that they are entitled to the admission and classification that they seek, including proving that they maintain a foreign residence abroad that they have no intention of abandoning. A variety of factors are to be taken into consideration by the inspecting officer, including, but not limited to, the intended length of stay, proof of foreign residence, and financial solvency.

Because there have been concerns that immigration officers are not properly trained, it was inquired at the meeting that for the San Diego CBP port of entry, please identify the procedure available to seek supervisory review of an officer’s refusal to admit a visitor due to the period of time he or she was previously present in the U.S.

In instances in which an officer refuses to admit a visitor due to the period of time he/she was previously present in the U.S., the applicant can ask to speak to the Supervisory CBP Officer who is assigned to the area in which the inspection took place. Such refusal would definitely result in a visa cancelation taking place, in which case an inquiry with the Special Cases Office could be initiated in order to have the cancellation reviewed.

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A recent decision by the Immigration Administrative Appeals Office overturned an L-1 denial on the grounds that the Immigration Service Director erred in denying the case on the grounds that there was not a qualifying relationship between the parent company and the U.S. subsidiary. The main concern the Director had was that the transfer of ownership did not make sense given that the purchase price was too low in light of the company’s revenues.

In order for a qualifying relationship to exist, the qualifying organization must meet one of the following definitions: “It meets exactly one of the qualifying relationships specified in the definitions of a parent, branch, affiliate or subsidiary…is or will be doing business (engaging in international trade is not required) as an employer in the United States and in at least one other country directly or through a parent, branch, affiliate or subsidiary for the duration of the alien’s stay in the United States as an intracompany transferee.” A “subsidiary” for these purposes means a firm, corporation, or other legal entity of which a parent owns, directly or indirectly, more than half of the entity and controls the entity; or owns, directly or indirectly, half of the entity and controls the entity.

When the case came on appeal, the company showed that the foreign employer acquired 51 percent ownership interest in the U.S. company and submitted evidence to verify the ownership interest. In addition, in the request for evidence, the foreign company showed that the foreign entity agreement to purchase 51 membership units from the existing member also noted the net liabilities by which the foreign entity was willing to accept and was willing to accept those liabilities.

Labor shortages have been a significant challenge to U.S. agriculture for as long as I can remember. On rice farms in Texas to corn fields in Nebraska, it seems as though farmers are always running short of farmhands when it comes time to harvest.

But now, unlike the simpler days of 20 years ago and longer, when farmers could just hire teenagers and retirees, farmers and ranchers are facing new challenges with labor issues. From border security concerns and state versus federal authority questions to I-9 audits and government-caused labor delays under the H2-A program, finding a reliable agriculture workforce is becoming more and more difficult.

From the Border to the Court

This is a great update from the CPB Liaison Practice group. A nonimmigrant alien who has previously presented a visa for admission to the United States may sometimes be readmitted (a) in the same nonimmigrant classification as shown on an expired visa or (b) in a different nonimmigrant classification than shown on an expired or valid visa if a change of status occurred while the individual was in the United States. The nonimmigrant alien’s absence from the United States must be limited to 30 days or less, and the individual’s travel must be limited to certain geographic locations.

Admission under this procedure is called “automatic visa revalidation.” Automatic visa
revalidation is applied differently depending on the individual’s nonimmigrant visa
classification. Most nonimmigrants may rely on automatic visa revalidation to apply for readmission after travel to a “contiguous territory” (Canada or Mexico).

Nonimmigrants in the F or J classification may rely on automatic visa revalidation to apply for readmission after travel to a “contiguous territory” or “adjacent islands other than Cuba.” At a minimum, in order to be eligible for this benefit, the nonimmigrant alien must present a valid passport, a valid Form I-94 (Departure Record or Arrival-Departure Record), and either (a) an expired nonimmigrant visa in any classification or (b) a current, valid nonimmigrant visa in any classification.

Documentary and Other Requirements

To rely on automatic visa revalidation, a nonimmigrant alien must meet the following conditions when applying for readmission to the United States:
– Present a Form I-94 showing an unexpired period of initial or extended authorized stay. If the individual has applied for and received an extension or change of nonimmigrant status while in the United States, the Form I-94 may be attached to, or separated from, a Form I-797, Notice of Action. ¾ Nonimmigrant aliens (including an accompanying spouse or child) applying to be admitted in F, M, or J classification must also present one of the following documents as applicable:
F or M classification: A valid Form I-20, Certificate of Eligibility for Nonimmigrant,
issued by the school at which the Department of Homeland Security has authorized
the principal nonimmigrant’s attendance.

J classification: A valid Form DS-2019, Certificate of Eligibility for Exchange
Visitor Status, issued by the authorized program sponsor showing the unexpired
period of stay.

– Present a valid passport with a nonimmigrant visa, whether valid or expired, used for a prior admission to the United States. If the individual’s current passport does not contain the nonimmigrant visa, the individual must present a prior passport with a visa.

An expired nonimmigrant visa includes (1) a visa that is no longer valid because of
the passage of time and (2) a visa that is no longer valid because the maximum
number of entries has been used.

Canadian Citizens and Presentation of a Passport Containing a Visa

Canadian citizens must have been admitted at least once after presentation of a visa to
qualify for automatic visa revalidation. Canadian citizens are exempt from the requirement to present a visa for admission to the United States in nonimmigrant
classifications other than E or K. If a Canadian citizen is admitted in a nonimmigrant
classification that does not require a visa and then changes status to E-1 or E-2 while
in the United States, the Canadian citizen may not rely on automatic visa revalidation.

Instead, this individual must apply for an E visa before readmission. The Canadian
citizen must hold either a valid or an expired visa in the passport at the time of the
application for admission in E-1 or E-2 status.

Example #1: A Canadian citizen is admitted to the United States in
TN status (a visa exempt classification). The Canadian citizen
changes status to E-2 during the period of temporary stay within
the United States. This person travels to Canada for a week, does
not apply for an E-2 visa, and then asks to return to the United
States in E-2 status. The Canadian citizen presents a valid passport
and a valid I-94 card, but no visa.

The Canadian citizen is not currently admissible under automatic
visa revalidation and must apply for an E-2 visa prior to
readmission to the United States.

Example #2: A Canadian citizen is admitted to the United States in
TN status (a visa exempt classification). The Canadian citizen
changes status to E-2 during the period of temporary stay within
the United States. This individual travels to Canada, applies for
and is issued an E-2 visa, and presents the visa for admission to the
United States in E-2 status. Through the passage of time, the E-2
visa expires even though E-2 status has been extended as reflected
on a Form I-94. The Canadian citizen then travels to Canada, does
not apply for a new E-2 visa, and applies for readmission to the
United States in E-2 status. The Canadian citizen presents a valid
passport, a valid, unexpired Form I-94, and the expired E-2 visa.

The Canadian citizen is admissible under automatic visa
revalidation.

In summary, The Department of Homeland Security (DHS) U.S. Customs and Border Protection (CBP) has the authority and the responsibility over the admission of travelers to the U.S. Under the automatic revalidation provision of immigration law, certain temporary visitors holding expired nonimmigrant visas who seek to return to the U.S. may be admitted at a U.S. port of entry by CBP, if they meet certain requirements, including, but not limited to the following:
* Nonimmigrants who departed the U.S. for brief travel to Canada, Mexico, or an adjacent island (for F and J nonimmigrants) for thirty days or less;
* Nonimmigrants with a valid (unexpired) Form I-94, Arrival-Departure Record, endorsed by DHS.

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