1. Be Concise & Address the Main Points USCIS will be Looking for
The new office L-1A petition is approved for 1 year. It is intended as a ramp-up period to get the new office going and to allow it to develop. In the extension petition, you must document that the U.S. office is now sufficiently staffed and able to support an executive or managerial position.
The new office extension petition needs to include a Support Letter from an authorized representative of the Petitioner describing the beneficiary's duties during the first year of operations and the proposed job duties under the extended petition.
Remember that the USCIS officer does not have much time to go through the petition in order to locate the necessary information. The Support Letter should describe how the beneficiary qualifies as an L-1A Manager or Executive and should tie together all the documents provided with the case.
The Support Letter should also address 3 main points:
• How the beneficiary will manage the organization, department, subdivision, function, or component of the organization;
• How the beneficiary will supervise and control the work of other supervisory, professional or managerial employees, or manage an essential function, department or subdivision of the organization; and
• How the beneficiary will make decisions on daily operations of the activity or function under his or her authority. If the beneficiary will be a first-line supervisor, evidence must be submitted showing that the supervised employees will be professionals.
Helpful Documents to Provide with an L-1A New Office Extension Petition
A detailed description of the beneficiary's duties demonstrating what the beneficiary does on a day-to-day basis with the percentage of time spent on each duty.
An organizational chart of the Petitioner with the beneficiary's direct subordinates.
A staffing list showing all employees in the beneficiary's department by name, job title, a summary of duties, education level and salary.
Educational documents and resumes of employees and independent contractors.
Petitioner's Federal and State Quarterly Wage Reports for the last 4 quarters.
Petitioner's payroll summary and Forms W-2, W-3 and 1099s showing wages paid to all employees under the beneficiary's direction.
Employment agreements with employees and contracts with independent contractors hired.
Petitioner's Tax Returns.
2. Use a Flow Chart Explaining how the Business Operates and Who Performs Each Function of the Business
It is a good idea to include an operational flow chart or diagram explaining how the business operates and who performs non-managerial functions.
For example, a company specializing in distributing products imported from overseas has several components which need to be explained to USCIS. The Petitioner needs to describe who performs the logistical functions and purchases goods from overseas, who supervises the customs process, who takes care of marketing and advertising of the business, who sells the products and how the sale is organized, whether it is through wholesale, a retail process, third-party sites or the petitioner's website, etc. The petitioner also needs to explain how the orders are fulfilled, who works on customer relationship management, whether the businesses uses any automated systems for order intake, e-commerce, shipment, CRM, etc.
This whole process needs to be explained to USCIS in order to clearly show the beneficiary's role at the top of the organizational hierarchy in managing the processes or employees of the petitioning business.
3. Include Examples of the Specific Projects Managed by the Beneficiary
The extension petition should include an explanation of the projects managed by the beneficiary in the first year. These should specifically point out examples of decisions made by the beneficiary.
Documentary support of the projects can include evidence in the form of contracts signed by the beneficiary, reports showing the progress achieved, the new lines of business created, emails showing supervision on the projects and employees as well as letters from partners, investors and other businesses who have witnessed the beneficiary's managerial decisions, etc.
4. Independent Contractors Count
Remember that it is not only the employees in the beneficiary's direct supervision that count. You can also show that the beneficiary is performing managerial duties by presenting evidence of supervision given to independent contractors hired.
Make sure to document the nature of work the independent contractor was hired to perform, the number of hours worked and projects completed, the compensation paid, and the overall supervision given.
It is in many companies' natures of business to only hire independent contractors or it can also be customary in the industry for certain professionals to work as independent contractors rather than employees of one business. For example, many marketing, website creation and content generation duties are normally outsourced to independent contractors,this being a standard in the industry.
5. The Petitioner Must Show that the Company is Able to Support a Managerial or Executive Position at the End of the 1st Year
This means that it is enough if the business hires sufficient personnel to relieve the beneficiary from performing the day-to-day non-qualifying duties by the end of the first year before filing for the L-1A extension.
6. Foreign Employees who Support the Day-to-Day Operational Needs of the Petitioner Count
USCIS has adopted the Administrative Appeals Office (AAO) decision in the case Matter of Z-A-, Inc.as a policy guidance.
In that case the petitioning company in the U.S. had only 2 employees. However, the foreign affiliated company had 8 other employees who supported the U.S. operations and the work of the beneficiary. The AAO considered the overall purpose of the organization as well as its stage of development within the broader picture, taking into account the support staff in the affiliated foreign organization. In that case, the AAO found that the petitioner had established the reasonable need for the managerial employee and that it was more likely than not that the beneficiary would primarily manage the essential function of developing the organization's brands and presence in the U.S. while day-to-day non-managerial tasks would be performed by a combined staff of 10 employees of the U.S. office and the foreign parent company.
In other words, the decision clarified that, when determining whether the beneficiary will primarily manage an essential function of an organization, the company's global operations and the beneficiary's role within this wider international structure are viewed as a whole.
7. The Caliber of Subordinate Employees Matters
The quantity of employees is not the determinative factor in considering whether the beneficiary acts as an L-1A manager. The caliber of these employees is also important. In other words, it is not enough to show that the beneficiary has a subordinate staff of numerous workers. To be qualified as a manager, the beneficiary must manage other managerial or professional employees. Professional employees are those who require a bachelor's degree for entry into the occupation as a normal industry requirement.
First-line supervisors of non-professional employees do not count as qualifying L-1A managers.
Therefore, it is especially difficult for service industry businesses to bring in an executive or a manager from overseas if the subordinate staff is comprised only of service workers. For these businesses, it is important to show that there is an additional management layer in the organizational hierarchy that makes the beneficiary a top-level manager who does not directly supervise non-professional service employees.
8. If the Petitioning Business is not yet Making Enough Profit, Present Evidence of Additional Investments
If the business is slow to take off and cannot yet provide for itself, it is a good idea to include evidence of additional investments made to support the petitioner's ongoing operations.
9. If Plans Change...
Even with the best business projections and the most talented executives, life brings surprises and the business may not perform as planned initially. If the business does not take off as quickly as expected, if the business model does not prove itself or the company cannot stick to its original business plan, it is important to document what the beneficiary has done as a manager or executive trying to make the business work and what decisions were made to change the business structure, i.e. adding new lines of business, etc.These decisions made by the beneficiary can be documented in the L-1A extension petition to show managerial level discretion and authority that was used to guide the business in the right direction.
10. If All Else Fails, Try L-1B or Another Visa Option
If the business does not perform as planned and the company is not able to show that it can support a manager or executive by the end of the first year of operations, the petitioner may still try and gather as much as possible for the extension petition and ask USCIS for a one-year extension as opposed to 2 years to allow the business to develop further. While it has worked sometimes in the past, it is becoming more challenging to attain approval with almost no results to show.
If the L-1A extension is not successful, the petitioner may consider L-1B as a potential option if the employee also possesses specialized knowledge. Other visa options can also be considered, such as for example O-1 or H-1B or even a green card through employment (PERM-based immigrant petition).
