On Oct. 4, 2012, the Administrative Appeals Offices ruled that to establish eligibility for the L-1 nonimmigrant visa classification, the petitioner must meet the criteria outline in section 101(a)(15)(L) of the Immigrant and Nationality Act. Specifically, a qualifying organization must have employed the beneficiary in a qualifying managerial or executive capacity, or in a specialized knowledge capacity, for one continuous year within the three years preceding the beneficiary’s application for admission into the United States. In addition, the beneficiary must seek to enter the United States temporarily to continue rendering his or her services to the same employer or subsidiary or affiliate thereof in a managerial, executive, or specialized knowledge capacity.
The regulation at 8 C.F.R. § 214.2(1)(3) states that an individual petition filed on Form I – 129 shall be accompanied by:
(i) Evidence that the petitioner and the organization which employed or will employ the alien are qualifying organizations as defined in paragraph (l)(1)(ii)(G) of this section.
(ii) Evidence that the alien will be employed in an executive, managerial, or specialized knowledge capacity, including a detailed description of the services to be performed.
(iii) Evidence that the alien has at least one continuous year of full-time employment abroad with a qualifying organization within the three years preceding the filing of the petition.
(iv) Evidence that the alien’s prior year of employment abroad was in a position that was managerial, executive, or involved specialized knowledge and that the alien’s prior education, training, and employment qualifies him/her to perform the intended services in the United States; however, the work in the United States need not be the same work which the alien performed abroad.
In order to establish a “qualifying relationship” under the Act and the regulations, the petitioner must show that the beneficiary’s foreign employer and the proposed U.S employer are the same employer (i.e. one entity with “branch” offices), or related as a “parent and subsidiary” or as “affiliates.” (Section 101(a)(15) L)
In the particular case on appeal, petitioner’s nonimmigrant petition to classify the beneficiary as an intracompany transferee pursuant to section 10(a)(15)(L) of the Act was denied by the Director of the California Service Center. On appeal, the AAO held that the petition had consistently stated that the foreign entity acquired the 51 percent ownership in the U.S company from an existing member. Therefore, the petitioner needed only to document that this transfer of ownership occurred, which it did by submitting the U.S company’s amended and re-stated operating agreement and the membership purchase interest agreement. The AAO sustained the appeal, withdrawing the director’s decision and approving the petition.
Source: AILA InfoNet Doc. No. 12100943 (posted 10/09/12)