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.

Continue reading

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.

Continue reading