AAO Case Decision re Entrepreneurs: EB-1 Intracompany Transferee Visa

1409592_gavel_2.jpgIn order to grasp a true understanding of the criteria a foreign national entrepreneur must meet in order to qualify for an immigration visa, it is extremely helpful to study relevant court case law that illustrate the real-world application of the black letter law. The USCIS Administrative Appeals Office issued a recent and important ruling on June 13, 2013 in a case involving an EB-1 immigrant visa petition for alien worker as a multinational executive or manager.

This case is important because the AAO’s decision here is favorable toward foreign national entrepreneurs who may seem ineligible based upon the black letter law, yet actually do meet the necessary criteria upon closer review.

This case is an appeal before the AAO in which the petitioner’s EB-1 immigrant visa petition was originally denied by the USCIS Nebraska Service Center (or “director”), and the denial was subsequently reversed by the AAO. The case involved a beneficiary who was the majority shareholder of the foreign company and the petitioning US company.

The petitioning company was founded in 1997 in Illinois and doing business in ground transportation. The names of the parties in the case have been redacted by the government and are unavailable.

The AAO Court illustrated for essential key points:

  1. To establish that the beneficiary is a manager or executive, although the statute definition includes the term “employee,” the focus should be on the duties and responsibilities rather than the beneficiary’s employment status;
  2. In establishing that the beneficiary will manage a subordinate staff professional, managerial, or supervisory personnel, having a small sized company is not necessarily grounds for denial without also considering the company’s reasonable needs;
  3. The fact that the beneficiary is the owner of the foreign company and living in the US is not enough to justify denial on the ground that the foreign company does not continue to do business;
  4. In establishing that the company has been in operation for at least one year, a change in ownership and management does not break the one-year timeline.

The definition of “employee” is based upon duties and responsibilities

The director found that the beneficiary did not meet the definition of employee because the petition was not supported by evidence establishing that the petitioning entity had supervisory control or the ability to hire and fire the beneficiary. The AAO disagreed with the director, and it held that although the evidence did not show that there was an individual or board having the authority to supervise the beneficiary, this is not a legitimate ground for denial. The AAO concluded that the focus should be on the duties and responsibilities of the beneficiary, and not his or her employment status.

The needs of the company are not based upon its size alone

The director concluded that the US company lacked the organizational complexity required to support its need for the beneficiary as a manager, and it based its conclusions solely upon the fact that the company had the small size of eight employees. The AAO held that this conclusion was incorrect because the director did not take into account other relevant factors in considering the company’s organizational complexity.

The foreign entity can still be “doing business” when the owner(s) reside in the US

The director concluded that the foreign entity was not “doing business” abroad because the beneficiary and his spouse were the owners of the foreign company and were living in the US. The AAO disagreed with the director and held that this fact alone is not enough to deny the petition. The AAO stated that the petitioner submitted sufficient evidence to establish that the foreign company had indeed been doing business, including evidence of real estate, it’s 52 employees, business contracts, and photographs taken on the premises.

The company’s change in ownership and management does not break the one-year timeline

The director found that when the beneficiary had purchased the US business, this transaction interrupted the one-year period for which the company was required to have been doing business before the petition was filed. The AAO disagreed and held that the director was incorrect as a matter of law because a change in ownership and management does not affect whether the company has been doing business as defined by regulations as a “the regular, systematic, and continuous provision of goods and/or services by a firm, corporation, or other entity.”