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Clarifying the Rules for Certain L-1 Visa Petitions

Written By The Shapiro Law Group on March 23, 2018

The USCIS published an updated rule clarifying the rules for certain intracompany transferee L1 visa petitions. An employer filing an L-1 visa petition for the intracompany transfer of a foreign employee must substantiate that, at the time of filing the petition, the American company and the foreign company are in a relationship that qualifies for L1 visas. The petitioner must show that the two companies are the same employer, for instance,a U.S. company with a branch office in a foreign country, or the companies are related as affiliate companies or as a parent and subsidiary.

Irrevocable Proxy Votes

To determine if the relationship in existence qualifies to be granted an L1 visa, control and ownership are the factors that will be scrutinized by the USCIS officers. This means looking at the legal right of possession and the right and power to direct the operations of the business. In certain L1 visa petitions, these two factors may be established through the use of proxy votes. The documentation submitted must show that from the time the petition is filed through to the time the officers adjudicate the petition, the equity holders permanently approved the transfer of their equity to another holder, who will then assume legal control over the company or companies. Documentation required may include irrevocable proxy agreements, the organizational documents of the entity, an affidavit from the equity holder granting the proxy, minutes of the meetings detailing how the irrevocable proxy was arrived at, and legal framework under which the proxy was granted. The petitioner bears the burden of proof and for the adjudicator to determine the eligibility of the petition, the evidence provided must be credible and sufficient.

Previous rules allowed equity holders to revoke a proxy at any time unless it was made expressly irrevocable. This depended on the jurisdiction governing the entity and the sale of an equity holder’s equity. If a petitioner fails to demonstrate the mandatory common ownership and control and establish a qualifying relationship, the USCIS adjudicates the petition. An amended L1 petition can be filed if the organization’s ownership and control change after the adjudication. The amended petition must be filed in compliance with the clarified regulations regarding irrevocable proxy votes.