AAO Finds CSC Erroneously Denied L-1A Extension Petition
September 19th, 2013
USCIS’ Administrative Appeals Office (“AAO”), which hears appeals from denials of most business immigration petitions, recently reversed a California Service Center (“CSC”) order erroneously denying an L-1A intracompany manager/executive transferee petition. The AAO instead approved the petition, finding that the CSC had failed to consider “the reasonable needs of the organization in light of its overall purpose and stage of development.” The AAO concluded that the CSC had focused almost exclusively on the staffing level of the U.S. affiliate, without regard to the broad responsibility and discretion held by the beneficiary employee. The AAO also stated that “it is reasonable to consider” the employee’s function in the global company as a whole in determining managerial capacity, rather than looking solely to his job duties in the U.S.
This decision, while not establishing a binding precedent, is beneficial to employers in that it demonstrates the AAO’s willingness to push back on the increasing hostility from USCIS adjudicators towards L-1A cases. Reference to this decision in an L-1A petition might, therefore, positively influence the outcome of a case involving a senior manager employed by a small U.S. branch of a large global organization.
In this case, the unnamed petitioning company was the wholly-owned U.S. subsidiary of a billion dollar publicly-traded parent (based in an unnamed country), which developed, manufactured, and sold packaging materials worldwide. The U.S. affiliate had been operating for one year, distributing the parent company’s products. The beneficiary employee headed the U.S. affiliate as Vice President and Chief Operating Officer, responsible for managing and developing the U.S. operation. He had two employees in the U.S., and eight based abroad. In March of 2013, the U.S. affiliate filed to extend the beneficiary employee’s L-1A status for an additional two years, providing substantial evidence to support his role as a staff and functional manager with oversight over the entire U.S. operation, as well as his senior role in the global organization as a whole.
Nevertheless, the CSC denied the L-1A extension petition, concluding that the U.S. company had “failed to establish that it would employ the beneficiary in a qualifying managerial or executive capacity.” In particular, the CSC found that 1) the beneficiary’s job duties did not reflect executive or management capacity, and 2) that his two U.S. subordinates were not employed in managerial, supervisory, or professional positions.
In reversing the CSC, the AAO chided the CSC for basing its decision almost exclusively on the two employee staffing level of the U.S. affiliate, stating that the CSC was mandated by statute to consider the reasonable needs of the organization as a whole when using staffing levels as a factor in its L-1A adjudications. Further, the AAO found that the U.S. affiliate worked in tandem with its parent company, and therefore a proper USCIS analysis would have considered the beneficiary’s role in the global company, as well as his eight other, globally-based employees.
In light of these findings, the AAO determined that the petitioner had submitted sufficient evidence to establish that the beneficiary would be employed in a managerial capacity; not only had the beneficiary been given significant discretion in decision-making, but he was also clearly a member of the parent company’s senior management team. The AAO therefore approved the L-1A extension petition.
One take away from this case is that U.S. companies sponsoring L-1A management employees should consider incorporating global functions and non-U.S.-based direct reports when assigning job responsibilities.
Categories: L-1 Intracompany Transfer Visa