USCIS Clarifies Factors To Consider For L-1A Visa

On April 14, 2016, USCIS issued a Policy Memorandum which provided guidelines for adjudicators when making a determination on an L-1A visa petition. An L-1A petition is for a company with foreign operations who wishes to send a manager or executive to work within their U.S. operations. The Policy Memorandum designates a 2013 decision by the Administrative Appeals Office ("AAO") as an adopted decision and establishes policy guidance that it says "applies to and binds all USCIS employees". The designated decision of the AAO is In Matter of Z-A- Inc. that overturned a decision made by a director at U.S. Citizenship and Immigration Service's California Service Center denying an extension of stay for an L-1A beneficiary who was a vice president and chief operating officer of a Japanese manufacturer. The director had concluded that the company did not have an "organizational structure" large enough to support an executive position and he would primarily perform sales duties. The AAO found that the director erred in focusing on the small number of employees working for the manager in the U.S. operations. The AAO found that the record substantiated that while the U.S. office employed a sales manager and an administrative professional it also retained outside professional service providers and had the foreign staff. The unnamed Japanese parent company is a publicly traded firm with over $900 million in sales. The AAO concluded that while the manager may be required to perform some operational or administrative tasks from time to time, the company established by a preponderance of the evidence that he primarily manages an essential company function. The USCIS Policy Memorandum states that it is intended solely for the guidance of USCIS personnel. This Policy Memorandum should have a big impact on L-1A cases which were being very narrowly construed by USCIS. USCIS will now have to examine all of the facts in the case and not focus on the number of employees in the U.S. operations or supervised by the beneficiary.
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