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Extra steps to maximize the odds of having an L-1A visa petition approved without an RFE

The Trump administration’s “Buy American, Hire American” executive order has caused difficulties for foreign nationals seeking visas across a wide variety of categories, including the L-1A nonimmigrant visa classification. The L-1A visa category has long been a popular way for certain employers to transfer executives and managers between affiliated companies. Executives and managers who enter the United States with an L-1A visa can remain in the country for seven years, along with their immediate family members.

There are a number of requirements which must be met in order to qualify for an L-1A visa. These include proving existence of a qualifying relationship between the U.S. and foreign entities, the prospective employee’s employment abroad in a managerial or executive capacity within three years prior to filing the L-1A petition, and the prospective employee’s employment in the U.S. in a managerial or executive capacity.

Previously, obtaining L-1A approvals from the U.S. Citizenship & Immigration Services (USCIS) was a relatively straightforward process. Typically, an employer would submit descriptions (ranging from few pages to few paragraphs) of the employee’s foreign and U.S. job duties, organizational chart(s), copies of the employee’s paystubs and CV, company’s stock certificates/ledgers, tax returns/financial statements, and a company brochure. While there was never a 100% guarantee of approval, as long as an employer satisfied the basic threshold of demonstrating that it was more likely than not that the company and the employee met the L-1A criteria, USCIS would approve the petition without first issuing a Request for Additional Evidence (RFE). For L-1A renewals/extensions, it was normal practice to just mostly recycle the initial L-1A filing sometimes (but not always) supplementing it with more recent financial/tax documentation. As long as the underlying facts had not changed, USICS rarely gave much scrutiny to L-1A renewal petitions.

All of this changed subsequent to the “Buy American, Hire American” executive order whereby USCIS drastically increased the level of scrutiny for all visa petitions, including L-1s. Officers have also been told to extend the same level of scrutiny to nonimmigrant visa extension requests as they would to original applications – even where the underlying facts have not changed.  Instead of relying on the previous approval as the basis of granting a renewal, the burden is on the applicant to prove that he or she qualifies for an L-1A visa. This policy has led to extensive RFEs despite the fact that many of these same cases were approved previously.

At the same time, while there have been more denials of L-1A visa applications, it is still possible to obtain an approval without an RFE. Below are some of the extra steps employers should take to maximize their chances of approval based on USCIS’ current and developing trends and requirements:

  • Stay away from generic/basic descriptions of executive/managerial job duties.

According to USCIS, even if the employee being transferred is a President or a CEO of a particular organization, providing general descriptions of his or her executive job duties (e.g., directing company’s management, establishing goals and policies, exercising wide latitude in discretionary decision-making, etc.) is “generic” and “vague” and additional evidence will be requested via an RFE.

To avoid this, include as much detail as possible for both foreign and U.S. positions along with approximate percentages of time typically spent on various tasks and some specific examples of said tasks as well as any notable accomplishments the employee may have achieved. For example, if the employee is in charge of leading projects, explain what these projects are, their financial values/budgets, and their significance/value to the company. The more details, the better.

  • Include representative samplings of documents relating to managerial/executive duties.

This type of supporting evidence may be in the form of PowerPoints, internal e-mails, presentations, reports, proposals, and any contracts, invoices, letters, etc., signed by the employee in his or her capacity as an executive or manager. For example, if the employee has authority to hire/fire employees, include copies of employee performance evaluations he or she conducted and any offer/termination letters he or she signed.

  • Executive/managerial employee’s subordinates’ job duties, CVs, degrees and proof of employment.

Focusing on demonstrating that the prospective U.S. executive or manager was managing/directing professional level employees abroad and will be managing/directing professional level employees for the domestic company is key to the successful submission of an L-1A case.  As such, in addition to organizational chart(s), include brief (3-5 sentences) job descriptions of the employee’s current and future direct reports along with copies of their CVs, LinkedIn profiles, and college degrees.

USCIS has also recently started asking for documentation proving that the executive/managerial employee’s clamed subordinates actually were/are employed with the foreign/U.S. companies. To avoid an RFE on this issue, make sure to include copies of the foreign and U.S. subordinates’ offer letters, paystubs, W-2s, etc.

  • Make sure that the executive/managerial employee’s job title and duties are in line with what is on his or her CV, LinkedIn profile, paystubs, etc.

It definitely creates a problem with USCIS when for example, an L-1A petition claims the employee’s job title is “Senior Consultant Manager” while his or her paystubs, CV, LinkedIn profile, etc., list him or her as a “Junior Consultant.” This is not uncommon in situations where an employee was hired years ago in an entry-level/junior role and has since been promoted, but the job title has not been updated accordingly in some of the company and/or personal documents. The same goes for any CVs, LinkedIn profiles, etc., submitted for the executive/managerial employee’s subordinates.

  • If the employee does not have any direct reports, manages only a few employees, or manages employees who are not professional, he or she may still qualify as a “function manager.”

Under recently adopted USCIS policy, if an L-1A visa applicant does not manage any employees or manages employees who are not professional (i.e., have at least a bachelor’s degree), he or she may still qualify for as a “function manager” if the employer is able to demonstrate that: (1) the function is a clearly defined activity; (2) the function is “essential,” i.e., core to the organization; (3) the beneficiary will primarily manage, as opposed to perform, the function; (4) the beneficiary will act at a senior level within the organizational hierarchy or with respect to the function managed; and (5) the beneficiary will exercise discretion over the function’s day-to-day operations.

For example, a multinational tech company filed an L-1A application seeking to classify its Director of Financial Planning and Analysis (FP&A) as a “function manager.” The employee’s duties consisted of financial analysis and planning for the organization. The USCIS Administrative Appeals Office determined that the FP&A’s duties were core to the organization, because the employer’s executive team and board of directors depend on FP&A reports and strategies to drive the company’s financial health. In addition, financial analysis and planning impacts every business unit and geographic area within the entire organization.

While the recent trend in high rates of L-1A RFEs and denials, coupled with an across-the-board push back on immigration applications, is worrying, obtaining approvals for executives and managers wishing to transfer to the U.S. is still achievable as long as the L-1A petition (initial and extension) is prepared meticulously and careful attention is paid to every detail.

Valentin Karpenko

Senior Associate Attorney