AILA Conference 2021 Day 4: Trying To Be An L-1 Intracompany Transferee

2021 AILA Conference Day 4: Trying To Be An L-1 Intracompany Transferee

Categories: Resources
Published: June 12, 2021

Tags: AILA | L-1A | L-1B | Video

2021 AILA Conference L-1 Visa Discussion Summary:

In this video, Attorney Joseph Tsang discusses the updates and key points of the L-1 visa category at the 2021 AILA conference, incuding L-1 intracompany transferees. You’ll learn about the impact of Buy American, Hire American, also known as BAHA, and how the impact of BAHA has changed from one president to the next. You’ll also hear more about RFEs and how to address these even when they seem vague. Gain insight into the reason for an RFE and what you can do to enhance the original application to avoid the need for more information. This video also covers the changes in L-1B applications and lastly, national interest exceptions. There are so many great tips included to help prepare your L-1 or your client’s L-1 visa application.

Watch the full video to learn more.

Full Video Transcript

Hi everyone, this is Joseph. This is the last video for the AILA 2021 conference, and we’re talking about L1s. The best way to end it. One of my favorite visa categories. The speakers were phenomenal, and they talked about so many critical things and so many good insights. Let’s get to it.

[Tsang Intro Splash]

[0:19] The first thing we need to talk about is BAHA: Buy American, Hire American. That was a Trump policy, and Biden has gotten rid of it and has a new policy. It’s still very much Buy American, Hire American, but the way it’s being implemented is now different. Before, when we were filing cases, you had to expressly explain how this doesn’t violate the executive order of buying American and hiring American. Why are you bringing in an executive from overseas when you can just hire another executive here? Are there a short supply of MBA students here that can’t lead your company for some reason? Explain.

Now, you don’t have to strictly do that, but it’s still a good idea. The place that we always do it is in the conclusion and also in the beginning to show the officer exactly how important this individual is to the company and also to the industry. And also to America as a whole. That it is good public policy to allow this particular person in, and, not just in a theoretical sense, but also give them something interesting that they can go home to their spouse and say, “Hey honey, do you know I just reviewed this case? Do you know what Sony is doing next year? This is insane! This is what they’re planning on doing. I can’t tell you this, but you know, marital confidentiality, right?”

[1:32] The second thing are RFEs (Requests for Evidence) notice of intent to deny. At every single AILA conference that talked about L-1As and L-1Bs for the past probably 10-15 years, this topic always comes up. When will we not see a request for evidence? And also, what are the strategies to respond to the request for evidence? And for the past 10-15 years, AILA has invited speakers to digest and talk about this particular issue to no end, and this year there’s no difference.

All the speakers are very seasoned with their L-1A and L-1B applications. When they deal with a particular RFEs, you could tell a lot of times you’re dealing with an officer that doesn’t really know what they’re asking for. They’re using a boilerplate, or maybe they are asking for a specific thing, but it isn’t, it’s not like a necessary and sufficient issue. It’s not like, “Give me these three things and it will be okay.” If that was that easy, life would be so much easier. But a lot of times it’s very abstract, almost philosophical. What is this person’s job duty, and how does that elevate them to an executive capacity?

Well, here are a list of 20 documents that you can give, but even if you do, it might not be sufficient. What does that mean? What do you do? And a lot of the immigration attorneys in the room, and every AILA event is always asking, “I give this thing, but you know, how should I prepare this thing and what is it exactly like?” And oftentimes, “I give this thing and they want more. They get denied, and I have to refile. What do we do?”

The truth is there is no one-size-fits-all answer. A lot of these officers at USCIS, they might have been transferred over from the family division because they’re short-staffed on adjudicating all these L1 cases, and because of the boilerplate, it’s already there. Maybe they don’t have enough time to review your case, and maybe they did have your time to review your case, but it wasn’t explained properly, and they don’t understand.

The goal is to be able to provide documents and to be able to explain in such an easy way that your grandmother would be able to see it and clearly understand it, and that’s something that we’re going to get right. 

The L1 blanket applications. Now, the rules have changed. It can’t, you’re not going to just be issued the L1 blanket visa. It needs to be clearly approvable.

What does that mean? Well, now that since that is now a higher standard, clearly approvable, sure if you’re a CEO of a major Fortune 500 company, that’s clearly approvable. But what about all the other ones in between that and a startup? Each case has its own unique thing that makes it special, whether it’s its location, its employee staff, its demographic, its industry, its customer, the client’s position, the client’s background, the startup phase or it’s a very mature company. You need to capture the core of that and be able to present that to the officer.

The team that you’re working with to build out this case needs to be able to find that one thing and in one sentence be able to explain, “This is why this person is executive managerial, even if it’s a functional manager.” Don’t necessarily shy away from that, but be able to focus in, “Hey, I manage this particular function in the company. It’s only me. I don’t have a team, but the entire company depends on me to get that right. I was already an L-1B, now I’m transitioning to an L-1A so that later on I could do EB-1C.” 

You need to be able to explain that and you can do it very, very clearly and do it succinctly and do it in the first page. So the officer sees it. “Oh, okay, I see that your point. Let me see your exhibits. Okay, you have these 20, 30, 50 things to prove it. Wonderful.” 

 [4:59] On the topic of L-1Bs, the panels were saying how it used to be a nightmare and L-1As are the nightmare now. You know what, L1s generally have always been a nightmare, and we talk about the good old days, but you know what? The good old days weren’t even just pre-Trump. Right, like the Obama days, there were still a lot of L-1B nightmares and L-1A nightmares. The true good old days were in the Clinton era, where a lot of things just got approved, and it was relatively simple. But again, those days are over.

Globalization has taken its place in the world. Now, there are companies all over the world, and the world is extremely interconnected. Almost every small company has an overseas office. And if every company can qualify as an international company with executive managerial positions to be transferred back and forth, well, then that makes no difference. Those days are over. Globalization has since then really taken foot, and now every company seems to have an overseas subsidiary. And if every position and every title seems to be able to be an executive manager or a functional manager and can easily be transferred over, even if it’s just two small restaurants, well, then that really makes the whole visa category kind of void. 

So again, the evidentiary documentation that’s needed to elevate this particular visa category has been upped. And now all the attorneys and now all the agents and all the companies really need to step up their game to really prove that they are extraordinary.

And that’s the thing, right? L-1A is a stepping stone to EB-1C. EB-1C is in the same category as EB-1A. These are the categories of the best of the best. You have to think about it in that mindset. How is this person so important to the company? And how is this company so important to the U.S. economy as a whole that they qualify for this premium, premium, the best of the best visa category so that they can be in? They’re not just an essential worker; they are the best of the best.

And when you see it in that light, then of course the officer issued you a request for evidence because all you submitted was an org chart, a few bubbles with his name, and a job duty that probably the attorney wrote out, but there’s no other substantive data to prove his worth. The thing is, the business department of USCIS, they are already the ones who’ve gotten the highest grades when they take their test, so they get assigned to the business cases.

Not to say business immigration officers at USCIS are somehow better than family cases because family cases can be extremely complex. But generally speaking, when they take their tests, the top of the top get assigned to the business, and then the family division complains like, “Hey, of course, our cases are complicated because all the best officers get pulled in to do their business.” But in that light, you can see these officers. They only have 20 minutes to review the entire L1 application.

And if it’s not clear that they are the executive or functional manager, and you just randomly provided a whole bunch of documents that they listed without any thorough explanation, then, of course, they’re going to challenge it. And just getting an RFE or a notice of intent to deny is not a terrible thing. You at least have the opportunity. 

At least the days of living in fear that we’re not going to get a request for evidence, that the case will immediately get denied is over now that you get the opportunity to respond should something arise. And if the USCIS forum is correct, hopefully the officer in the future will be able to be provided with the authority just to pick up the phone and directly call the applicant or call the attorney and say, “Hey look, I don’t understand this particular issue. Can you verbally explain it to me because I don’t see it in the documents?” And then you clarify, and bam, the case gets approved. They do that with family cases already for some of the family cases, but if they do that for business cases, that will be amazing.

[8:51] And last but not least, the national interest exception. You know AILA has invited some of the best speakers on the L1 because they were able to secure the national interest exception for their clients. These L1 visa holders, they were able to go to the consulate even though a pandemic is raging on. They got the waiver, and they were able to come to the U.S. I think I’m pretty good at this also because I was able to do it for French and Korean clients [see L-1A success stories]. And the thing is, if you do your L1 case correctly, every single one of your L1 cases should be able to qualify for a national interest exception. You should be able to make a claim and prove that this person is essential to the U.S. economy, and that’s how you should frame it right. So in the initial way when you submitted the documents, that should be your heightened standard in the first place. And when you have that high of a standard for your applications, then when something happens in the world and suddenly the consulates are shut down and only the exceptional can come in, then your case can rise to that level. You never know when something like this will happen, but thankfully these attorneys were able to do that, and you were able to present the documents, and then the people can come to the U.S. because it is urgent.

[10:05] There’s only one thing that I would like to add to their panel discussion. They mentioned amazing things, and you should absolutely download it from AILA Agora and AILA University.

There’s one thing, though, that they said that I slightly disagree with, and that is that CBP is not allowing the national interest exception. So, the national interest exception is supposed to be issued by the Department of State in consulates and embassies abroad, right? But they are closed, and maybe they’re not being able to issue you an appointment within a reasonable time, and you cannot get this exception, so you cannot come to the U.S.

But in that circumstance, CBP officers, many of whom I spoke with, they are willing to do it. And maybe this doesn’t apply across CBP as a whole, but I know a lot of ports of entries, especially the land border ports of entries, they are willing to look at this particular situation. Let them know, show the CBP officers this is your client’s case. They need an L visa to enter. Will they be able to be allowed in even though they don’t have the appropriate visa? And the answer is yes. They do look at it, and they will accept it provided that you also show them that you tried to contact the embassy, and the embassy just couldn’t do it. The CBP officers, really, the land border and at the airport, they really stepped up their game this year.

I would give them a standing ovation if I can right now. I’ll do it right now. Yeah, awesome job, good job. 

[11:30] And that’s it for this video and all of AILA’s 2021 conference. Now, I did not cover most of the things provided in the AILA conference, and also with each of these sessions. I only captured the things that I found most interesting to share with all of you.

There’s so much good material. Please, if any of this seems interesting, go ahead and subscribe to AILA, download it from AILA Agora, AILA University. They have provided so many good resources. As a practitioner, you absolutely need to join AILA and continue to support their good efforts because they are helping us make immigration policies better.

Thank you. Take care. Bye-bye.