16 Apr Not All L-1 Visa Business Plans Are Created Equal

Getting an L-1 visa application approved has become more difficult in recent years. Both Republicans and Democrats are putting the immigration system under a microscope to look for ways to protect US workers and guard against a perceived increase in fraudulent visa applications.[1] In this context, USCIS is scrutinizing business plans submitted with L-1 visa petitions more closely than ever, issuing more “Request for Evidence” letters (RFEs) and setting the stage to deny more cases.

Many of the problems USCIS lists in these RFE letters can be anticipated and should be addressed and documented in business plans before submitting an application. However, many companies that prepare L-1 visa business plans focus on an entirely different audience when preparing and documenting their plans.

L-1 visa business plans are not like business plans for banks, venture capitalists or even other visa categories. They should be drafted for the express purpose of meeting the immigration law requirements for this particular visa category. To ensure that an L-1 visa application has the best chance of being approved, use a company to draft the plan that is familiar with U.S. immigration laws and regulations and the most recent nuances in approval patterns coming out of regional and local offices. The business plan should document that the petitioning company and the beneficiary meet the immigration criteria of an L-1 visa application. [2]

Recently, immigration practitioners have noticed a significant uptick in the number of USCIS RFE letters issued on L-1 visa applications. The RFEs question the business plan and the assumptions, evidence and other documentation on which the plan is based. A review of the types of questions attorneys are seeing in the RFE letters leads us to make two recommendations: make the business plan clear and easy to read and have an immigration lawyer prepare or review the L-1 business plan before submitting the application.

Submit a high-quality, professional business plan

Many USCIS’ objections address issues that should have been corrected during final review in the law firm. Examples include: comments about the quality of the copies submitted; questions regarding the relevance of a particular document; or submission of too much raw data without a summary cover sheet. Additionally, many supporting documents are submitted without English translations. Petitioners cannot expect an officer to understand a foreign paystub without an accurate translation.

A frustrated USCIS officer is not going to give an applicant the benefit of the doubt as he or she continues to review the application. At some point, it becomes easier simply to issue a boilerplate RFE and put the entire application on the shelf for three months. USCIS’ position is that the employer’s cover letter alone is insufficient to overcome these issues.

Many of these kinds of RFE issues can easily be remedied before the petition is submitted. There is no excuse for submitting “illegible” copies: those that are too light to read the relevant portions, copies that are cut off, or those where the second side of a two-sided document is missing. If documents are long or text fills a page completely, highlight the text on the page or in the document that is relevant to the criterion it supports. It is easy enough to insert a cover page with a note indicating to which page or section the officer should direct his or her attention.

Use an experienced immigration attorney to prepare the L-1 business plan

Other types of problems immigration practitioners report relate to the level of detail provided with the initial application in support of the business plan. It appears that USCIS is asking for “documentation of the documentation.” What may have been “sufficient” in the past, is no longer sufficient.

For example, one RFE lists four duties that a managerial employee primarily performs and stated that the evidence must demonstrate that the beneficiary satisfies all four duties. In support of the initial petition submission, th employer provided a supporting letter; the beneficiary’s resume; generic organizational charts for the U.S. and foreign company, including a diagram of the beneficiary’s specific department; and the alleged, “illegible” payroll records discussed above. USCIS found this evidence insufficient to support the application.

USCIS suggested in the RFE that the petitioning employer provide additional and detailed documentation of the Beneficiary’s training, pay and personnel records. It also requested more detailed information on the organizational chart that would:

• Clearly identify the beneficiary’s position on the chart. This falls under the category of “making the officer’s job easier” by not making him or her try to figure out which requirement a document supports.
• Include a high level of detail in the global organizational chart and make it understandable.
• Include a secondary chart of the entire division that the manager or executive supervises. List the following information:
  • All employees in the beneficiary’s immediate division, department or team including those the beneficiary supervises
  • List all employees above by name, job title, summary of duties, education level and salary in addition to providing resumes
  • Provide recent evidence of the specific day-to-day duties that the beneficiary has performed for the foreign entity
  • Describe typical managerial or supervisory functions within the organization or department and the percentage of time spent on each

“Over-documenting” each criterion is the best course of action when submitting a business plan to support an L-1 visa application. It is becoming increasingly clear that practitioners should submit L-1 business plans that meet this higher level of scrutiny. We suggest that business plans be drafted with the USCIS requirements in mind, first and foremost, and take into consideration the latest news out of the USCIS service centers adjudicating these applications.

Many companies that provide L-1 visa business plans to petitioning companies do not understand this or do not have immigration law expertise. Working with a company that understands the specific requirements of an L-1 visa application can help avoid RFE letters or a denial related to insufficiently-supported business plans.[3]

For further information,  please visit www.ecouncilinc.com to set up a FREE INITIAL CONSULTATION to discuss , and one of our business visa experts will contact you to discuss your options and next steps. You can also contact us directly at Info@eCouncilInc.com or 1.866.724.0085.

e-Council Inc.’s website, newsletter and other forms of communication contain general information about legal matters. The information is not legal advice and should not be treated as such. You must not rely on the information on this website as an alternative to legal advice from an attorney or other professional legal services provider. For specific questions about any legal matter please consult with an attorney or other professional services provider

[1] On 1/20/17, Senator Chuck Grassley (R-IA) introduced the H-1B and L-1 Visa Reform Act of 2017 (S.180) to amend the Immigration and Nationality Act to reform and reduce fraud and abuse in certain visa programs for temporary workers. The bill was cosponsored by three Democratic senators.

[2] For a general overview of the L-1 visa requirements see the USCIS website at https://www.uscis.gov/working-united-states/temporary-workers/l-1a-intracompany-transferee-executive-or-manager.

[3] For more information about our business plans specifically for L-1 visa applications:  https://ecouncilinc.com/visa-business-plans/