Alan Lee Speaks on Immigration to United Chinese Association of Brooklyn on May 15th Concerning L-1A Intracompany Transfers, EB-5 Investment, and PERM Labor Certifications. (Part 1)
By Alan Lee, Esq.†
[The following is the first of a three part series on Alan Lee's talk before theUnited Chinese Association of Brooklyn and focuses on L-1A intracompany transfers. Part 2 will be published here on Monday, June 6th, and discuss EB-5 investments. Part 3 will be published here on Wednesday, June 8th, with the final topic, PERM labor certifications.]
Good morning to all of you on this Sunday morning. Hope you all had your breakfast since we will not be breaking until the end at 12:30. I'm Alan Lee and my translator for today is one of my legal assistants, Sue Wu. The person manning the power point projector is Arthur Lee. Today's talk will be on three methods of employment based immigration, L-1A intracompany transferees, investors, and PERM labor certification applicants. I want to thank Steve Chung and the Chinese United Association of Brooklyn for providing us with the forum today. We will take questions at the end of the presentation.
Traditionally immigration to the U.S. has been family based or employment based. There is of course immigration through refugees or the visa lottery or other special programs, but generally speaking, if you cannot immigrate through family, you will immigrate through employment. What you see now is the visa chart of the State Department for June 2011. The chart controls the allocation of green cards by category dependent upon when the applicants begin to apply. Persons who wish to apply for U.S. immigration through any category including the employment based ones will generally consider how long they will have to wait to immigrate. Although not an exact science, looking at the visa chart will give you a rough idea of the length of time that you must consider in deciding whether to apply under certain categories. Intracompany transferees are under the employment based first category. As you can see, that category is marked with a "C". That designates that the category is open or current, which means that there is no waiting period. The investor category belongs to the fourth employment-based category, which is also current with no waiting line. PERM labor certifications usually translate into either the employment based second or employment based third skilled worker or professional category. Second preference is usually for people with advanced degrees or with bachelor's degrees plus five years of progressive experience which are needed in the job, and third skilled or professional is for those with either bachelor's degrees or two years of experience which are required for the position. As you will note, the second category is open for all nations except China and India which have backlogged dates of October 15, 2006. That means that the category is only open for final immigration for those persons who put in their labor certification paperwork to the Department of Labor by that date. That is why you are advantaged in this category if you are born in other regions such as Taiwan, Hong Kong or Macau. In that case, the second employment preference would be open to you. The third skilled or professional category has a backlog of September 15, 2005, for most of the world except that some countries are backed up even further such as China whose date is May 15, 2004, and India April 22, 2002.
We have to give you one warning though, which is that persons here illegally in the States are generally not able to adjust their statuses here unless they are also beneficiaries under Section 245(i) under which they can pay a thousand dollar fine to adjust so long as they had either immigrant visa petitions or labor certification applications filed on their behalf by April 30th 2001, and are able to prove that they were physically present in the U.S. on December 21, 2000.
L-1A is the most commonly known term for an intracompany manager or executive. L-1A itself is a non immigrant visa status which can later translate through further application into the green card. There are generally three requirements of this category which are that there be two companies, one in the U.S. and one overseas, which are connected with each other by at least 50% common ownership, that the beneficiary be an manager or executive, and that the manager or executive have worked in the overseas company for at least one of the past three years. The attraction of this category is that a good company can transfer employees and their families to the States during the period of their L-1A visas or even easily immigrate them through the category. Intracompany transferees who are managers or executives do not require labor certifications to immigrate.
What is a manager and what is an executive? U.S.C.I.S. defines a manager as an employee who primarily:
Manages the organization, or a department, subdivision, function, or component of the organization;
Supervises and controls the work of other supervisory, professional, or managerial employees, or manages and essential function within the organization, or a department or subdivision of the organization;
Has the authority to hire and fire or recommend those as well as other personnel actions (such as promotion and leave authorization) if another employee or other employees are directly supervised; if no other employee is directly supervised functions at a senior level within the organizational hierarchy or with respect to the function managed; and
Exercises discretion over the day-to-day operations of the activity or function for which the employee has authority. A first-line supervisor is not considered to be acting in a managerial capacity merely by virtue of the supervisor's supervisory duties unless the employees supervised are professional.
U.S.C.I.S. defines an executive as an employee who primarily:
Directs the management of the organization or a major component or function of the organization;
Establishes the goals and policies of the organization, component or function;
Exercises wide latitude in discretionary decision-making; and
Receives only general supervision or direction from higher level executives, the board of directors, or stockholders of the organization.
Sounds easy, doesn't that? How do you apply? The common way for the L-1A for anything other than a very large company is the submission of Form I-129 Petition for a Non-Immigrant worker along with the L Classification Supplement to Form I-129 to either the U.S.C.I.S. regional service centers in Vermont or California. Persons in this region would file in Vermont. The Form I-129 is seven pages requesting much information on the company and individual and the L supplement requests further information concerning the affiliation of the companies and the applicant's education and work experience and what he/she will be doing in the States.
If you have an established company, what documentation do you submit? As you can see from the slide, there are requirements of both documents from the U.S. and documents from the overseas company. In terms of U.S. documents, we recommend some of the following: job description in detail of the position in the U.S., articles of incorporation, minutes of the first meeting, certificate of incorporation and filing receipt, stock share certificates, organizational chart of the company; evidence of doing business including tax returns, audited financial statements, or annual reports; and company bank statements.
In terms of overseas documents, we would recommend most of the same types of materials to validate the overseas company including a detailed job description of the position overseas. Also the beneficiary should send copies of any diploma and transcript of college schooling if he/she has had post-secondary education.
What happens if you do not have an established company over here, but are just coming over to start up a new enterprise. In that case, as you can see from the next slide, the overseas documents remain the same, but the documentation for a new company is different. It would usually consist of some of the following: a job description in detail of the position in the U.S.; documentation of the setup of the U.S. company including the filling out of the corporate kit, lease of premises, and a business plan describing how the organization plans to expand within one year, including locations, organizational structure, and financial goals.
If the L-1A non-immigrant visa is not the green card, do you really need it in order to apply for a green card as an intracompany transferee? I think the U.S.C.I.S. generally expects to see an approved L-1A and would look extra hard at a case asking for the green card where the applicant was never approved as an L-1A. Also having the visa allows the applicant time to build up the company if the applicant is also the principal owner of both companies. U.S.C.I.S. will generally allow an established company three years for a manager or executive and one year where a new company is involved on the first approval. What are the things you should watch out for if you wish to go through this route? You remember that we mentioned manager or executive as a requirement. U.S.C.I.S. over the years has shown a predilection in favor of larger size companies and against small companies. Therefore it has challenged most companies of very small size here in the States on the definition of manager or executive saying that the company has no requirement of such high-level people since they do not control the work of professionals or supervisory personnel. Regardless of the size of the organization overseas, you can expect a challenge from the agency if you're thinking of establishing a small company of 2-5 people in the States and want to get your green card through this process. In the 1970's and early '80s, you may have been able to get a green card through this scenario easily, but that train has largely left the station. We did have one case, Firstland vs. INS, featuring a small company, in which we battled the government for years through the federal courts before they finally gave in and awarded our people green cards. But no one wants to go through that kind of trouble if they can avoid it. You should also know that even if you get the L-1A visa, U.S.C.I.S. may still reject you on the green card application. For new companies, L-1A's can only apply for their green cards if the U.S. company shows that it has been in existence and doing business for one solid year prior to the application for the green card process. Generally that means the new company will have to apply for an extension of L-1 status for the visa applicant in which the company will have to demonstrate growth enough to satisfy the need for a manager or executive.
Assuming that the L-1A visa holder is in a position to file for immigration, the organization can file an I-140 Immigrant Petition for Alien Worker along with the documentation outlined on the list before on the slide for established companies along with showing proof of doing business during the past year. The choice is up to the organization and the applicant as to whether to file the I-140 consecutively or at the same time with the adjustment of status application to permanent residence, Form I-485. The applications are filed to U.S.C.I.S.' Texas Service Center or Nebraska Service Center dependent upon jurisdiction over place of residence. Applications in this region would be sent to Texas. The applicants can also seek consular processing for an immigrant visa although most people prefer to adjust status of the States. Presently U.S.C.I.S. projects adjustment of status employment based cases to take approximately four months at the Nebraska Service Center and seven months at the Texas Service Center from the date of filing. However the times are variable. Consular processing on the other hand takes approximately nine months from the date of I-140 approval although the times are variable. You should note, however, that with concurrent processing for adjustment of status, I-140 and I-485 applications are adjudicated together whereas I-140 and consular processing have two processing times. If applicants want to speed up the I-140 processing, premium processing is now available for most preference categories upon payment of a $1,225 fee to the Department of Homeland Security.
What's our recommendation? If you want to go through this category, don't think that you to do with by establishing a small U.S. company with one or two or five people. Think bigger!