New USCIS Policy Decision Broadens Permissible Bases for Visa Transfer of Multinational Managers

27 June 2016 Labor & Employment Law Perspectives Blog
Authors: Roy J. Barquet

After four years of internal deliberations, U.S. Citizenship & Immigration Services (USCIS) recently issued a policy memorandum binding all USCIS personnel to follow the reasoning of a 2013 USCIS Administrative Appeals Office (AAO) decision. That AAO decision broadened the type of evidence a U.S. employer may cite in support of an L-1A intracompany transfer visa, which is used by U.S.-based entities that seek to transfer employment of a manager or executive from a foreign-based affiliate.

The 2013 AAO decision was petitioned by the U.S. subsidiary of a publically traded Japanese parent company that manufactures packaging solutions for the medical, pharmaceutical, and food industries. Its U.S. subsidiary imports, markets, and distributes the Japanese parent company’s product line in North America. In 2012, the U.S. subsidiary sought to extend the L-1A visa of a transferee employee, who acted as the U.S. employer’s vice president and chief operating officer. The USCIS California Service Center denied the extension request, claiming the transferee was not employed in a managerial capacity because the U.S. employer did not have an organizational structure large enough to support a managerial position. By citing the existence of only two payroll employees besides the L-1A transferee, USCIS denied the visa extension, claiming that in the absence of other employees, the transferee L visa beneficiary was primarily performing sales duties rather than managerial duties. The denial decision gave no weight to the fact that the transferred employee supervised contracted U.S. service providers and a foreign staff of eight employees, which included three sales employees, four engineers, and a shipping clerk.

AAO overturned that California Service Center decision, citing as error the denial’s emphasis on the small size of the U.S.-based operations. As the AAO noted, “That a petitioner may only have a few employees directly on its payroll, although a relevant consideration in the determination of whether a beneficiary qualifies as an L-1A manager, does not necessarily compel a conclusion that the beneficiary primarily performs day-to-day operational duties.”

By adopting as policy the guidance provided by the 2013 AAO decision, USCIS has now made it a requirement that all USCIS employees follow the reasoning of the AAO decision. U.S. multinational employers will be the prime beneficiaries of this reversal in longstanding USCIS practice. Now, even U.S. employers with quantitatively limited organizational structures can benefit from the advantages of the L employment visa category.

This blog is made available by Foley & Lardner LLP (“Foley” or “the Firm”) for informational purposes only. It is not meant to convey the Firm’s legal position on behalf of any client, nor is it intended to convey specific legal advice. Any opinions expressed in this article do not necessarily reflect the views of Foley & Lardner LLP, its partners, or its clients. Accordingly, do not act upon this information without seeking counsel from a licensed attorney. This blog is not intended to create, and receipt of it does not constitute, an attorney-client relationship. Communicating with Foley through this website by email, blog post, or otherwise, does not create an attorney-client relationship for any legal matter. Therefore, any communication or material you transmit to Foley through this blog, whether by email, blog post or any other manner, will not be treated as confidential or proprietary. The information on this blog is published “AS IS” and is not guaranteed to be complete, accurate, and or up-to-date. Foley makes no representations or warranties of any kind, express or implied, as to the operation or content of the site. Foley expressly disclaims all other guarantees, warranties, conditions and representations of any kind, either express or implied, whether arising under any statute, law, commercial use or otherwise, including implied warranties of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Foley or any of its partners, officers, employees, agents or affiliates be liable, directly or indirectly, under any theory of law (contract, tort, negligence or otherwise), to you or anyone else, for any claims, losses or damages, direct, indirect special, incidental, punitive or consequential, resulting from or occasioned by the creation, use of or reliance on this site (including information and other content) or any third party websites or the information, resources or material accessed through any such websites. In some jurisdictions, the contents of this blog may be considered Attorney Advertising. If applicable, please note that prior results do not guarantee a similar outcome. Photographs are for dramatization purposes only and may include models. Likenesses do not necessarily imply current client, partnership or employee status.

Related Services