May 2013  

Your L-1 Visa Petition
Preventing and Surviving the Request For Evidence
(or Notice of Intent to Deny)

Many foreign businesspersons have experienced the anxiety and frustration that occurs after filing an L-1 visa petition. Upon filing the petition, the USCIS issues a lengthy Request for Evidence (RFE) or a Notice of Intent to Deny (NOID). What are the common issues that cause a RFE or NOID? How can this be prevented and if the government does issue a RFE or a NOID, then how can you overcome it? First, let us briefly review some background of the L-1, and then dissect its legal requirements and its evidentiary criteria.

What is an L-1 Visa?

The L-1 Visa is one of the most common non-immigrant work-related visas. The L-1 Visa is available for an alien who has been employed by a foreign business in the capacity of an executive, manager or of specialized knowledge, and who seeks to be transferred to the entity's U.S. office. The employee must have worked for the foreign business in one of these capacities for at least one year out of the last 3 years preceding the filing of the petition. The U.S. entity must be either the parent company, subsidiary, branch, affiliate or joint venture partner of the foreign company but does not have to engage in the same line of business as the foreign company. As a side note, only an executive or manager (L-1A) may apply for permanent residency, and that is part of the reason why fewer applicants like to categorize themselves as "employees of specialized knowledge" (L-1B).

Immigration Reform Update

The U.S. Senate continues to debate the comprehensive immigration reform bill. The bill includes enhanced border security, a path to legalization and employment based immigration options. As the bill goes through the political process, stay tuned to our newsletter for further updates.


Travelling as a Lawful Permanent Resident

Once you receive your permanent residency, and breath a sigh of relief, you then realize that you have to "maintain" your residency. According to the U.S. immigration laws, your residency can be abandoned if you do not spend sufficient time in the U.S. Absence of continuous 180 days or more from the U.S. raises a legal presumption that you have abandoned your residence.

Recently, the Customs and Border Protection clarified the absence of 180 days is only one of the factors in determining abandonment. Recently, the Washington D.C. Chapter of the American Immigration Lawyers Association noted the following points from its liaison meeting with the CBP:

There is a common misunderstanding that simply returning to the United States once every six months will preclude a finding that one has abandoned his or her lawful permanent residency. Whether an LPR has abandoned permanent residency, however, is not based solely upon the length of time spent outside of the U.S. In fact, during an October 20, 2011 meeting with the D.C. Chapter's CBP Liaison Committee, Baltimore (BWI) CBP representatives confirmed that "CBP officers are less focused on the length of time abroad and more on where does the person actually live." According to the representatives, CBP officers will look at the totality of the circumstances, including "how many years the person has lived in the U.S.; whether the person is employed in the U.S. or abroad; where family members live; [and] whether U.S. taxes have been paid."

Please note that the facts of each permanent resident are different. So it is important to consult with an experienced immigration attorney for maintaining your residency.

For more discussion on this important subject, please review our previous article, Maintaining your Permanent Residency.


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