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The different effects of changes from foreign companies on an L-1 extension and an EB-1 (C) petition | Us Immigration

By Cyrus D. Mehta and Rebekah Kim

The U.S. Citizenship and Immigration Service (USCIS) has issued a final memorandum to issue guidelines Matter of F-M-Co. as an accepted decision of the Administrative Appeals Office. The decision clarifies that a petitioner for employment-related multinational executives or managers of the first preference category has a qualified relationship with the beneficiary’s foreign employer at the time the application is submitted and must maintain this relationship until the application is decided. It also clarifies that a petitioner in a corporate restructuring affecting the foreign company before submitting the application for an immigration visa can demonstrate that the beneficiary’s qualified foreign employer continues to exist and do business through a valid successor company.

This differs significantly for an L-1 extension. In our previous blog, questions arising from changes in foreign companies after an L-1 petition was approved, we explained that an extension application for an L-1 can be made even if the foreign company (i.e. parent company, affiliate, subsidiary) The foreigner with the L-1 visa has resolved and there is no successor or successor interested as long as there is a foreign qualified entity, even if that foreign entity is not the one that Beneficiaries. According to 8 CFR §214.2 (l) (1) (ii) (G) (2) the employer must be an L-1 non-immigrant in the United States and at least one other country for the duration of his stay in the United States. A foreign qualified company must also do business for the entire period that the beneficiary is in L-1 status. However, it is less clear whether the foreign qualified entity must be the same one that the L-1 employed abroad. Still, an old decision by the Immigration Complaints Board Matter of Chartier, 16 I & N Dec. 284 (BIA 1977), ensures clarity. in the Matter of ChartierThe L-1 employee was employed by a company in Canada and was then transferred to work for the same employer in the United States. The service granted L-1 status to the foreign worker and later revoked him because he found that the employer had no subsidiary or affiliate in Canada. The service argued that without an established overseas office there was no place for the foreigner to return and that his L-1 employment could not be considered temporary. The Board rejected this argument and, in its interim decision, concluded that the L-1 employee could be sent back to Canada. or to the company’s subsidiary in Belgium. The Board’s decision indicates that the L-1 was valid as long as the company a qualifying unit abroad, even if it was not the Foreign company in which the L-1 employee has gained his qualified experience. This conclusion can also be drawn from USCIS L-1 training materials that were uncovered in response to a FOIA request and can be found in the AILA InfoNet under AILA Doc. No. 13042663 (published April 26, 2013).

Matter of F-M-Co Confirms that the analysis will change if the L-1 beneficiary is from the U.S. lawful permanent residence according to the employment-related first preference for multinational executives or managers under INA § 203 (b) (C) according to the employment-related first Preference is sponsored preference (EB-1C), and the foreign company in which the beneficiary has worked no longer exists due to a restructuring. There is no parallel regulation to 8 CFR § 214.2 (l) (1) (ii) (G) (2); the analogous determination at 8 C.F.R. Pursuant to Section 204.5 (j) (3) (i) (C), the “potential employer in the United States is the same employer or a subsidiary, or an affiliate of the company or company, or any other legal entity of which the alien was employed abroad. ”(Emphasis added.) If the foreign company that employed the beneficiary no longer exists, it must at least succeed the previous company under the Neufeld memorandum from 2009, in which a generally understandable definition of the successor was adopted in a previously defined strict reading – whereby a valid successor relationship could only be established by assuming all the rights, duties and obligations of a previous company. The Neufeld Memorandum turned to the Black’s Law Dictionary to get definitions of “successor” and “interested successor”. In the 2009 edition of the Black’s Law Dictionary, a “successor” was defined as “a company that is associated with the rights and obligations of a previous company through the merging, consolidation or other assumption of interests” and as an “interested successor” others in ownership or control of property follows “and” retains the same rights as the original owner, without material change. ” By deciding that the qualified company abroad does not have to exist in exactly the same legal form and that a successor company can be considered the same company that employed the beneficiary abroad, the AAO acknowledged the fact that large organizations may need to be restructured will. As a result, associated companies can be merged, consolidated or dissolved.

The decision of the AAO in Matter of F-M-Co will unfortunately lead to different and absurd results for an L-1 extension without a migration background and for an application for permanent residence. If a beneficiary applies for L-1 status renewal after the foreign company that has employed it no longer exists, the extension may be approved based on the existence of another qualified foreign company abroad. If the beneficiary is then sponsored for a permanent residence permit, however, there must be a valid current relationship between the U.S. petitioner and the foreign entity or successor organization, as generally defined in the Neufeld Memorandum, for the immigration visa to be approved. If, despite a merger or transfer, the foreign company no longer meets the definition of a parent company, an affiliate or a subsidiary and also does not meet the definition of a successor, the application for permanent residence will not be approved.

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