\ afm \ Adjudicator's Field Manual - Redacted Public Version \ Chapter 32 Petitions for Intracompany Transferees (L classification). \ 32.6 Technical Issues.
The United States and qualifying employer abroad must be legal entities. In the United States, a business is usually in the form of a corporation, partnership, or a proprietorship. When dealing with a smaller petitioning legal entity, evidence should be provided which establishes that there is a sufficient amount of employees to continue business operations in the foreign country, as well as continuing business operations in the United States once the beneficiary completes the temporary services and transfe
The regulations at
8 CFR 214.2(l)(1)(ii)
provide examples of the legal entities included under the L-1 classification. Evidence that the employer is a legal entity consists of evidence such as articles of incorporation, partnership agreement, license to do business, or evidence of registration with the Internal Revenue Service as an employer. In petitions involving well-known or publicly traded corporations, no such evidence should be required.
Determining Whether a Qualifying Business Relationship Exists
For purposes of L-1 classification, ownership and control are the factors for establishing a qualifying relationship between business entities.
Ownership means the legal right of possession with full power and authority to control.
Control means the right and authority to direct the management and operations of the business entity.
The petitioner is required to identify each of the qualifying organizations as one of the types of entities specifically described in 8 CFR 214.2(l)(1)(ii): parent, branch, subsidiary, or affiliate. The petitioner must document ownership and control of both legal entities to establish that a qualifying relationship exists as defined in the regulations.
Stock certificates alone may not be sufficient to establish that a qualifying relationship exists. Documents such as the corporate stock certificate ledger, stock certificate registry, corporate bylaws, and the minutes of relevant annual shareholder meetings when appropriate, should also be examined to determine the total number of shares issued, the exact number issued to the shareholder, and the subsequent percentage ownership and its effect on corporate control. When appropriate, a petitioning company sh
ould be asked to provide all agreements relating to the voting of shares, the distribution of profit, the management and direction of the petitioning company, and any other factor affecting actual control of the entity. Without full disclosure of all relevant documents, USCIS may be unable to determine the elements of ownership and control. See
Matter of Siemens Medical Systems, Inc
., 19 I&N Dec. 362 (BIA 1986). Evidence of the acquisition of the actual ownership interest (i.e., capital investment, wire transfers, stock purchase agreements, etc.) may be required as additional supporting evidence. See 8 CFR 214.2(l)(3)(viii).
The most common types of business relationships which are not qualifying under the L category are those based on contractual, licensing, and franchise agreements. Additional non-qualifying relationships include arrangements such as less than 50-50 joint ventures and charter membership arrangements. See discussions of various qualifying and non-qualifying relationships in
Matter of Schick
, 13 I&N Dec. 647;
Matter of Del Mar Ben, Inc.,
15 I&N Dec. 5;
Matter of Aphrodite Investments, Ltd.,
17 I&N Dec. 530;
Matter of Tessel, Inc.,
17 I&N Dec. 631;
Matter of Barsai
, 18 I&N Dec. 13
; Matter of Hughes,
18 I&N Dec. 289
; Matter of Siemens Medical Systems, Inc.,
19 I&N Dec. 362.
Companies that are publicly traded and regulated by the SEC may submit copies of annual reports, where probative, as evidence of their affiliates and subsidiaries. Most annual reports will list the company's foreign affiliates and subsidiaries, along with the company's ownership interest (controlling, not controlling, joint venture, etc.). The annual reports are frequently prepared by major accounting firms and include audited financial statements. Evidence may also include copies of SEC Forms
This will make L-1 processing easier for both
and publicly-traded companies.
Where one or both of the qualifying entities has undergone or will undergo a corporate reorganization (e.g. merger, spin-off, acquisition, etc.),
must determine whether the qualifying relationship between the entities will exist following the reorganization.
should therefore review standard documents from the merger: the letter of intent, minutes from shareholder's meeting, the Hart-Scott-Rodino antitrust filings, as well as the ultimate contract. However, unless the company is publicly traded, there will likely be privacy concerns regarding proprietary information and finances.
An L-1 petitioning company must be "doing business" as defined in 8 CFR 214.2(l)(1)(ii)(H) in the United States and at least one other country for the duration on the L-1 beneficiary's stay in the United States. In start-up operations, the business in the United States may be prospective in nature. Ordinarily, the viability of the U.S. employer may be demonstrated by the fact that the company has affiliate/subsidiary entities existing and operating under the laws of another country.
There may be instances where business is conducted through an agent rather than a separate legal entity. The mere presence of such an agent is insufficient to establish that the petitioner is doing business. The petitioner must establish that the entity conducts regular, systematic business (manufacturing, sales, services, etc.). A certified copy of the company’s most recent IRS
, including all attachments and schedules may also be required. See discussion in
Matter of Chartier, 16 I&N Dec. 284 (BIA 1977)
Matter of Thompson
, 18 I&N Dec. 169 (Comm. 1981), which also discusses this issue, has been superseded by more recent regulations and should not be followed.
experience has revealed that a large number of suspect L-1 petitioners are operating as small import/export firms. If a company is doing business as an import/export firm,
should require the firm to submit multiple examples of the customs forms that would be required in the normal course of business: Form 7525V (Shipper's Export Declaration),
(Customs Bond). The forms should include the importer's identification number. Other forms that would be required in the day-to-day business of an import-export firm would include invoices, shipping manifests, shipping insurance policies, bills of lading, letters of credit, wire transfer advisement, inspection certifications, sales contracts, and general business correspondence.
Managerial or Executive Capacity
The discussion of managerial and executive capacity that follows provides guidance for applying the definition of these terms to specific case situations:
An executive or managerial capacity requires a certain level of authority and an appropriate mix of job duties. Managers and executives plan, organize, direct, and control an organization's major functions and work through other employees to achieve the organization's goals. Front-line supervisors, such as those who plan, schedule, and supervise the day-to-day work of nonprofessional employees, are not employed in an executive or managerial capacity, even though they may be referred to as managers in their
particular organization. In addition, individuals who primarily perform the tasks necessary to produce the product(s) or provide the service(s) of an organization are not employed in an executive or managerial capacity.
Matter of Church Scientology International,
19 I&N Dec. 593 (Comm. 1988).
Eligibility requires that the duties of a position be primarily of an executive or managerial nature. The test is basic to ensure that a person not only has requisite authority, but that a majority of his or her duties relate to operational or policy management, not to the supervision of nonprofessional employees, performance of the duties of another type of position, or other involvement in the operational activities of the company. This does not mean that the executive or manager cannot regularly apply hi
s or her technical or professional expertise to a particular problem. Certain positions necessarily require a manager or executive's application of his technical or professional expertise; adjudicators should therefore focus on the primary duties of the beneficiary.
An executive or manager may manage or direct a function within an organization. It must be clearly demonstrated, however, that the function is not directly performed by the manager or executive. If the function itself is performed by the intended manager or executive, the position should be viewed as a staff officer or specialist, not as an executive/manager. In general, classification in a specialized knowledge capacity is more appropriate for individuals who perform the duties associated with a function,
rather than managing other professional employees or directing the activities or policies of the function.
If a small or medium-sized business supports a position wherein the duties are primarily executive or managerial the position may qualify under the L category. However, neither the title of a position nor ownership of the business are, by themselves, indicators of managerial or executive capacity. For example, a physician may incorporate his or her practice for business purposes and may hire a receptionist, bookkeeper, and a nurse to assist in that medical practice. For L purposes, the physician is not a ma
nager, but a person who primarily practices his or her professional skills as a physician.
The L beneficiary who is coming to the United States to open a new office may be classified as a manager or executive during the one year required to reach the "doing business" standard if the factors surrounding the establishment of the proposed organization are such that it can be expected that the organization will, within one year, support a managerial or executive position. The factors to be considered include amount of investment, intended personnel structure, product or service to be provided, physic
al premises, and viability of the foreign operation. It is expected that a manager or executive who is required to open a new business or office will be more actively involved in day-to-day operations during the initial phases of the business, but must also have authority and plans to hire staff and have wide latitude in making decisions about the goals and management of the organization.
Specialized Knowledge Capacity.
In order to establish eligibility for approval, the L-1B petitioner must show: (1) that the beneficiary possesses "specialized knowledge"; (2) that the position offered involves the "specialized knowledge" held by the beneficiary; and (3) that the beneficiary has at least one continuous year of employment abroad in a managerial, executive, or specialized knowledge capacity with the petitioning employer and/or any qualifying organization (collectively referred to as the "petitioning organization") within the preceding three years. If the beneficiary will be located primarily at the workplace of an unaffiliated company, the petitioner also must establish that the beneficiary is eligible for L-1B classification under the requirements of the L-1 Visa Reform Act.
(1) Definition of "specialized knowledge."
A petitioner can demonstrate "specialized knowledge" by establishing either one of two statutory criteria. Under the statute, a beneficiary is deemed to have specialized knowledge if he or she has: (1) a "special" knowledge of the company product and its application in international markets; or (2) an "advanced" level of knowledge of the processes and procedures of the company. INA 214(c)(2)(B). The corresponding regulation similarly defines specialized knowledge in terms of "special" or "advanced" knowledge:
[S]pecial knowledge possessed by an individual of the petitioning organization's product, service, research, equipment, techniques, management, or other interests and its application in international markets, or an advanced level of knowledge or expertise in the organization's processes and procedures.
8 CFR 214.2(l)(1)(ii)(D) (emphasis added).
Because the statute and regulations do not define the terms "special" or "advanced," we look to their common dictionary definitions, as well as the agency's practice and experience in this context. The term "special" is defined in leading dictionaries as "surpassing the usual," "distinct among others of a kind," "distinguished by some unusual quality," "uncommon," or "noteworthy."1 The term "advanced" is defined in various dictionaries as "greatly developed beyond an initial stage," or "ahead or far or further along in progress, complexity, knowledge, skill, etc."2 Applying these definitions to the statutory and regulatory text, a beneficiary seeking L-1B classification should, as a threshold matter, possess:
The following section explains how to determine whether a beneficiary possesses special or advanced knowledge.
- special knowledge, which is knowledge of the petitioning organization's product, service, research, equipment, techniques, management, or other interests and its application in international markets that is distinct or uncommon in comparison to that generally found in the particular industry; or
- advanced knowledge, which is knowledge of or expertise in the petitioning organization's specific processes and procedures that is not commonly found in the relevant industry and is greatly developed or further along in progress, complexity and understanding than that generally found within the employer.
(2) Application of the "specialized knowledge" definition.
A beneficiary may possess either special or advanced knowledge, or both. Determining whether a beneficiary has "special knowledge" requires review of the beneficiary's knowledge of how the petitioning organization manufactures, produces, or develops its products, services, research, equipment, techniques, management, or other interests (hereinafter "products or services"). Determinations concerning "advanced knowledge," on the other hand, require review of the beneficiary's knowledge of the specific petitioning organization's processes and procedures. With respect to either special or advanced knowledge, the petitioner ordinarily must demonstrate that the beneficiary's knowledge is not commonly held throughout the particular industry. As discussed in detail below, however, a beneficiary's knowledge need not be proprietary in nature or narrowly held within the petitioning organization to be considered specialized.
Determining whether knowledge is "special" or "advanced" inherently requires a comparison of the beneficiary's knowledge against that of others. The petitioner bears the burden of establishing such a favorable comparison. Because "special knowledge" concerns knowledge of the petitioning organization's products or services and its application in international markets, the petitioner may meet its burden through evidence that the beneficiary has knowledge that is distinct or uncommon in comparison to the knowledge of other similarly employed workers in the particular industry.
Alternatively, because "advanced knowledge" concerns knowledge of a petitioning organization's processes and procedures that is not commonly found in the relevant industry, the petitioner may meet its burden through evidence that the beneficiary has knowledge of or expertise in the petitioning organization's processes and procedures that is greatly developed or further along in progress, complexity and understanding in comparison to other workers in the employer's operations. It is not sufficient to demonstrate that the beneficiary has general knowledge of processes and procedures common to the industry; the focus here is primarily on whether the beneficiary's knowledge of the processes and procedures used specifically by the petitioning organization is advanced. Such advanced knowledge must be supported by evidence setting that knowledge apart from the elementary or basic knowledge possessed by others in the petitioning organization and the relevant industry.
The following is a non-exhaustive list of factors that USCIS may consider when determining whether a beneficiary's knowledge is specialized:
- The beneficiary possesses knowledge of foreign operating conditions that is of significant value to the petitioning organization's U.S. operations.
- The beneficiary has been employed abroad in a capacity involving assignments that have significantly enhanced the employer's productivity, competitiveness, image, or financial position.
- The beneficiary's claimed specialized knowledge normally can be gained only through prior experience with the petitioning organization.
- The beneficiary possesses knowledge of a product or process that cannot be easily transferred or taught to another individual without significant economic cost or inconvenience (because, for example, such knowledge may require substantial training, work experience, or education).3
- The beneficiary has knowledge of a process or a product that either is sophisticated or complex, or of a highly technical nature, although not necessarily unique to the petitioning organization.
- The beneficiary possesses knowledge that is particularly beneficial to the petitioning organization's competitiveness in the marketplace.
The presence of one or more of these (or similar) factors, when assessed in the totality of the circumstances, may be sufficient to establish by a preponderance of the evidence that a beneficiary has specialized knowledge. As noted above, this list of factors is meant to be illustrative, not exhaustive, and it does not impose particular requirements that a petitioner must demonstrate. Suggested evidence that petitioners may provide consistent with these factors is provided in section 32.6(e)(3).
(A) Specialized knowledge generally cannot be commonly held, lacking in complexity, or easily imparted to other individuals.
One of the several factors that may be considered in determining whether knowledge is specialized is the amount and type of training, work experience, or education required to develop that knowledge. See 8 CFR 214.2(l)(3)(iv) (requiring petitioner to submit evidence of the beneficiary's "prior education, training, and employment"). Knowledge generally may not be considered special or advanced if it is commonly held, lacks some complexity, or can be easily imparted from one person to another. On the other hand, knowledge generally may be considered specialized if a petitioner can demonstrate through credible and relevant evidence that the knowledge possessed by the beneficiary would be difficult to impart to another individual without significant economic cost or inconvenience to the petitioning organization.4
Depending on the totality of the circumstances, significant economic cost or inconvenience may be a relevant factor; however, a petitioner is not required to establish significant economic cost or inconvenience if it can otherwise establish specialized knowledge.
(B) Specialized knowledge need not be proprietary or unique to the petitioning organization.
Although specialized knowledge ordinarily cannot be knowledge that is generally possessed or easily transferrable, it need not be proprietary or unique to the petitioning organization. A petitioner is not required to demonstrate that it is the only company where the beneficiary could have acquired the knowledge, or that it is the only company that trades in the technologies, techniques, products, services, or processes that are the subject of the beneficiary's knowledge. Although a petitioner may provide evidence that knowledge is proprietary or unique in support of its claim that the knowledge is also special or advanced, and thus specialized, the L-1B classification does not require such a finding.
(C) L-1B classification does not involve a test of the U.S. labor market.
As noted above, the petitioner must ordinarily demonstrate that the beneficiary's knowledge is not generally or commonly held in the relevant industry. Such a determination, however, does not involve a test of the U.S. labor market. A petitioner is not required to demonstrate the lack of readily available workers to perform the relevant duties in the United States.5 The relevant inquiry is not whether workers with the beneficiary's knowledge are available to the employer; rather, it is whether there are so many such workers that the knowledge is generally or commonly held in the relevant industry, and therefore not specialized. If there are numerous workers in the United States who possess knowledge that is generally similar to the beneficiary's, it is the petitioner's burden to establish that the beneficiary's knowledge nevertheless is truly specialized.6
(D) Specialized knowledge need not be narrowly held within the petitioning organization.
Although comparisons with other employees of the petitioning organization may be useful in determining whether the beneficiary's knowledge is "special" or "advanced," such knowledge need not be narrowly held within the petitioning organization. Multiple employees within a company may have obtained the experience, training, or education necessary to possess the same type of specialized knowledge. Some companies may use technologies or techniques that are so advanced or complex that nearly all employees working on the relevant products or services possess specialized knowledge. The mere existence of other employees with similar knowledge should not, in and of itself, be a ground for denial.
Depending on the facts of the case, where there are already a significant number of employees in the U.S. organization with the same claimed specialized knowledge as that of the beneficiary, a question may arise as to whether the relevant position needs to be filled by an individual having specialized knowledge. Accordingly, officers should consider, as in other L-1B cases, whether the evidence of record demonstrates the organization's need to transfer the beneficiary to the United States. The officer may consider, for example, whether the petitioner has shown the need for another individual with similar knowledge in the organization's U.S. operations and the difficulty in transferring or teaching the relevant knowledge to an individual other than the beneficiary. In reviewing the record, the officer should also consider how the duties to be performed by the beneficiary that require his or her claimed specialized knowledge may or may not differ from those already employed in the organization's U.S. operations; the extent to which the petitioning organization would suffer economic inconvenience or disruption to its U.S. or foreign-based operations if it were unable to transfer the beneficiary; whether and to what degree the beneficiary's claimed specialized knowledge would be beneficial to the successful conduct of the employer's operations; and whether the total compensation7 provided to the beneficiary is comparable in dollar value to similarly situated peers in such U.S. operations.8
(E) Specialized knowledge workers need not occupy managerial or similar positions or command higher compensation compared to their peers.
Unlike the L-1A nonimmigrant classification, the L-1B classification does not require that the beneficiary be a manager or executive. Nor does the classification require that the beneficiary be an officer or supervisor, or hold any other similar position within the petitioning organization. Although rank and compensation are factors that may be considered when analyzing whether a beneficiary possesses specialized knowledge, there is no requirement that the beneficiary be of a certain rank within the organization or that the beneficiary's compensation be "elevated" compared to his or her peers within the organization or the particular industry. There may be valid business reasons that one employee may be earning more or less than his or her peers. A company in its early development, for example, may not yet have generated sufficient income to pay the beneficiary a greater salary. In creating the L-1B classification, Congress focused on the beneficiary's "knowledge," not his or her position on a company's organizational chart or pay scale.
(F) Eligibility for another nonimmigrant classification is not a bar to eligibility for L-1B classification.The requirements for L-1B classification are distinct from other visa classifications. Eligibility for one classification does not preclude eligibility for another. A beneficiary may possess characteristics that make him or her potentially qualified for two or more distinct nonimmigrant classifications. For example, the beneficiary may have characteristics that make him or her eligible as an L-1B specialized knowledge worker and an H-1B "specialty occupation" worker. Similarly, a beneficiary may qualify for L-1B nonimmigrant status while at the same time possessing the extraordinary ability or achievement necessary for O-1 status. Possession of such dual qualifications does not render the beneficiary ineligible for either classification. Officers should only consider the requirements for the classification sought in the petition, without considering eligibility requirements for other classifications.
(3) Evaluating claims of specialized knowledge.
USCIS will be able to perform its adjudicatory function most effectively when the petitioner explains in detail the specific nature of the industry or field involved, the nature of the petitioning organization's products or services, the nature of the specialized knowledge required to perform the beneficiary's duties, and the need for the beneficiary's specialized knowledge. To show that the offered position in the United States involves specialized knowledge, the petitioner must submit "a detailed description of the services to be performed." 8 CFR 214.2(l)(3)(ii). A petitioner's statement may be persuasive evidence if it is detailed, specific, and credible. Adjudicators may, in appropriate cases, however, request further evidence to support a petitioner's statement, bearing in mind that there may be cases involving circumstances that may be difficult to document other than through a petitioner's own statement.9 The petitioner must also submit evidence that the beneficiary's "prior education, training, and employment qualifies him/her to perform the intended services in the United States." 8 CFR 214.2(l)(3)(iv). While the petitioner is required in all cases to compare the beneficiary's knowledge to that of others, the petitioner may also be able to demonstrate the nature of the claimed specialized knowledge by, among other things, indicating how and when the beneficiary gained such knowledge or explaining the difficulty of imparting such knowledge to others without significant cost or disruption to its business.
Other evidence that a petitioner may submit to demonstrate that an individual's knowledge is special or advanced, includes, but is not limited to:
- Documentation of training, work experience, or education establishing the number of years the individual has been using or developing the claimed specialized knowledge as an employee of the petitioning organization or in the industry;
- Evidence of the impact, if any, the transfer of the individual would have on the petitioning organization's U.S. operations;
- Evidence that the alien is qualified to contribute significantly to the U.S. operation's knowledge of foreign operating conditions as a result of knowledge not generally found in the petitioning organization's U.S. operations;
- Contracts, statements of work, or other documentation that shows that the beneficiary possesses knowledge that is particularly beneficial to the petitioning organization's competitiveness in the marketplace;
- Evidence, such as correspondence or reports, establishing that the beneficiary has been employed abroad in a capacity involving assignments that have significantly enhanced the petitioning organization's productivity, competitiveness, image, or financial position;
- Personnel or in-house training records that establish that the beneficiary's claimed specialized knowledge normally can be gained only through prior experience or training with the petitioning organization;
- Curricula and training manuals for internal training courses, financial documents, or other evidence that may demonstrate that the beneficiary possesses knowledge of a product or process that cannot be transferred or taught to another individual without significant economic cost or inconvenience;
- Evidence of patents, trademarks, licenses, or contracts awarded to the petitioning organization based on the beneficiary's work, or similar evidence that the beneficiary has knowledge of a process or a product that either is sophisticated or complex, or of a highly technical nature, although not necessarily proprietary or unique to the petitioning organization; and
- Payroll documents, federal or state wage statements, documentation of other forms of compensation, resumes, organizational charts, or similar evidence documenting the positions held and the compensation provided to the beneficiary and parallel employees in the petitioning organization.
A petitioner may submit any other evidence it chooses. In all cases, USCIS will review the entire record to determine whether the petitioner has established by a preponderance of the evidence that the beneficiary has specialized knowledge under the totality of the circumstances, in accordance with the standards set forth in the relevant statutes and regulations. Merely stating that a beneficiary's knowledge is somehow different from others or greatly developed does not, in and of itself, establish that he or she possesses specialized knowledge. Ultimately, it is the weight and type of evidence that establishes whether the beneficiary possesses specialized knowledge.
There are multiple examples outlined in the March 1994 memo. A common specialized knowledge theme is that the knowledge the beneficiary possesses, whether it is knowledge of a process or a product, would be difficult to impart to another individual without significant economic inconvenience to the United States or foreign firm. The knowledge is also not generally known and is of some complexity. The petitioner bears the burden of establishing through the submission of probative evidence that the alien's spe
cialized knowledge is distinguished by some unusual qualification and not generally known by practitioners in the alien's industry. Likewise, a petitioner's assertion that the alien possesses an advanced level of knowledge must be supported by evidence describing and setting apart the knowledge from elementary knowledge possessed by others.
Extent of Employment
It must be established that the alien will be rendering services to and employed by the entity inside the United States. The alien does not have to be employed by the U.S. employer on a full-time basis, but a significant portion of the alien's employment in the United States must involve managerial, executive, or specialized knowledge activities. Generally, activities such as conferring with officials, attending meetings and conferences, and participating in training are not considered productive employment
and are appropriate for B-1 classification. Salary and source of remuneration are not issues relevant to L-1 petition adjudication. See
Matter of Pozzoli
, 14 I&N Dec. 569.
Procedures for Calculating Maximum Period of Stay Regarding the Limitations on Admission of L-1 Nonimmigrants
USCIS officers shall comply with the following guidance to determine whether periods of time spent outside the United States by
an L-1 nonimmigrant
worker in a
specialized knowledge or a managerial or executive capacity
will be recaptured:
Periods of Time Outside the United States that May Be Recaptured for an L-1 Nonimmigrant Worker in a
specialized knowledge or a managerial or executive capacity
of the Act states that “the period of authorized admiss
ion for” an L-1 nonimmigrant admitted to render services in a managerial or executive capacity shall not exceed 7 years, or an L-1 nonimmigrant admitted to render services in a capacity that involves specialized knowledge shall not exceed 5 years, and becaus
e “admission” is defined as “the lawful entry of the alien into the United States after inspection and authorization by an immigration officer”
nly time spent in the United States
as an L-1 counts towards the maximum. Thus, upon requesting an extension, the L-1 nonimmigrant can request that full days spent outside the U.S. during the period of petition validity be recaptured and added back to his or her total maximum period of stay. As always, it is the applicant/petitioner’s burden to demonstrate eligibility, and appropriate evidence, such as copies of passport stam
nd/or plane tickets must be submitted.
The applicant for extension seeking to recapture time spent outside the U.S. need not demonstrate that the time spent outside the U.S. was meaningfully interruptive of his or her L-1 stay. The reason for the absence is not relevant to the question of whether the time may be recaptured. Any trip of at least one 24-hour day outside the U.S. for any purpose, personal or business, can be recaptured. The applicant for extension must only demonstrate to the satisfaction of the adjudicator that he or she was ou
tside the U.S. for the amount of time for which recapture is requested.
Matter of IT Ascent, EAC# 0404753189
was designated as bind
g policy guidance on October 18, 2005. While that decision only deals with H-1B extensions, Officers should refer to this decision as illustrative of the rationale for allowing recapture of any time spent outside the United States by L-1 nonimmigrants.
The burden of proof remains with the L-1 petitioner and/or the L-1 beneficiary to submit evidence documenting any and all exact periods of physical presence outside the United States when seeking eligibility for an extension of petition validity and extension of stay as an L-1 nonimmigrant.
The petitioner and/or beneficiary are clearly in the best position to organize and submit evidence of the beneficiary’s departures from and reentry into the United States. While petitioners often submit a summary and/or charts of travel and the number or days spent out of the United States, which eases review of the accompanying documentation, petitioners are also required to submit independent documentary evidence establishing that the alien was outside of the United States during all the days, weeks, mon
ths etc. that he or she seeks to recapture (e.g. photocopies of passport stamps and/or Form I-94 arrival-departure records).
The fact that the burden may not be met for some claimed periods, or has been met for some claimed periods, has no bearing on the remaining claimed periods. Any periods of time for which the burden has been met may be added to the eligible period of admission upon approval of the application for extension of status. An alien may not be granted an extension of stay for periods of time that are not supported by independent documentary evidence.
A Request for Evidence should not be sent to the petitioner for any claimed periods unsupported by evidence
In some instances, the alien may not be granted the entire period of time requested because the evidence submitted does not establish eligibility for the entire period of stay requested. In those situations, the approval notice should be issued for the period of time for which eligibility has been demonstrated.
The status of an L-2 dependent of an L-1 nonimmigrant is subject to the same period of admission and limitations as the principal alien. For example, if an L-1 alien is able to recapture a two-week business trip abroad for each year for five years in a row (for a total of 10 weeks), then his or her L-2 dependents, if seeking extension of stay, should be given an extension of stay up to the new expiration of the L-1 alien's stay. The statute and regulations allow L-2 status only "if [the dependents] are acc
ompanying or following to join the beneficiary in the United States." If it appears that the dependent is not using or is not intending to use L-2 status primarily to accompany or follow to join the principal L-1 alien, such as a situation in which the principal only is physically present or intends to be physically present in the United States for a small proportion of his or her period of L-1 admission and the dependents are using L-2 status to evade the limitations on or eligibility rules of the nonimmi
grant options that otherwise would be available, then the L-2 extension of stay may be denied, limited or revoked on notice giving the L-2 the opportunity to provide evidence of the intention primarily to accompany the principal.
Officers involved in the adjudication of L-1 petitions are cautioned that the examples provided in this memorandum are not all inclusive. Situations may develop in the adjudication of certain petitions, which will require the adjudicating office to use discretion. Therefore, decisions on petitions for extension concerning this issue that contain unique or novel circumstances may be certified to the Administrative Appeals Office for review.
Decoupling Time Spent in L-2 Status from L-1 Maximum Period of Stay
[Chapter 32.6(h) added 12-05-2006]
Time spent in L-2 status does not count against the five or seven-year maximum period of admission applicable to L-1A and L-1B aliens respectively. An alien who holds L-2 status (or who previously held L-2 status) and subsequently seeks to obtain L-1A or L-1B status is eligible for a maximum period of stay of five or seven years in L-1A or L-1B status respectively.
In the context of any applications for change of status from L-2 to L-1A or L-1B, adjudicators should consider whether the L-2 alien complied with the requirements of accompanying or joining the L-1A or L-1B alien, and whether the alien otherwise maintained valid nonimmigrant status.
USCIS may limit, deny or revoke on notice any stay for an L-2 dependent that is not primarily intended for the purpose of being with the principal worker in the United States, and a spouse or child may be required to show that his requested stay is not intended to evade the normal requirements of the nonimmigrant classification that otherwise would apply when the principal alien is absent from the United States.
USCIS (as well as port inspectors and consular officers) may adjudicate applications for dependent stays in order to prevent an L-1 alien from using only occasional work visits to the United States in order to “park” the family members in the United States for extended periods while the principal alien is normally absent.
FOOTNOTES for AFM Chapter 32.6
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