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What Works Under Our Current Immigration System?




by:
Ronald B. Goodman
Allison Spitz-Perry
Robinson Brog Leinwand Greene Genovese & Gluck P.C. - New York Office

 
May 16, 2013

Lately we have been hearing a lot about what does not work under the current immigration regulations, but while debates go on, those who are directly involved must ask what works, and what is one to do until new regulations are passed. Will new regulations even be an improvement?

Currently there is a great deal which does not work - unreasonably long waits for benefits, families separated, US Permanent Resident Aliens thrown into removal proceedings due to even a single misdemeanor from decades ago, an acute shortage of visas for skilled workers and limited visa opportunities for unskilled laborers who are willing to perform work which Americans will not. The list is almost endless, which begs the questions: what does one do until the “system is fixed,” and will it be fixed.

Congress has been talking about fixing the system for over a decade - always to be overshadowed by more pressing issues such as the current budget wars. Based on over 23 years of experience, holding one’s breath and waiting to apply for benefits until change happens does not seem to be the way to go. Will the change really be for the best, what if we lose some of the good tools?

The last major change in the regulations occurred in 1996, and gave us draconian results thanks to the creation of the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA). IIRIRA increased the severity of punishments, created new ones, expanded the definition of immigration crimes, required countless non-violent offenders to be locked up without bail, prevented judges from considering an immigrant’s family, work, and community ties, and resulted in mass deportations. IIRIRA is still in effect and being applied today.

Yet through all of this many individuals receive Nonimmigrant as well as Immigrant benefits. How does one do this? There are several effective paths to both Nonimmigrant and Immigrant visas for deserving applicants who submit thoughtful, carefully drafted applications. Most of these visa categories support economic growth and include Intending Nonimmigrants and Immigrants of Extraordinary Ability, Investors, Intracompany Transferees, as well as other aliens who merit Outstanding Ability.

For purposes of this article, I would like to focus on L-1 Intracompany Transferees and EB-1 Multinational Managers and Executives who merit Permanent Resident Status. The regulatory requirements for both are similar. The L-1 category includes L-1A Managers and Executives and L-1B Specialized Knowledge Employees. This is an excellent tool for companies with offices in both the US and overseas.

Like all immigration benefits, there are strict requirements necessitating careful compliance and drafting. The L-1 visa is granted to senior managers, executives, or specialized knowledge employees who have worked for the foreign company for a least one year out of the past three. It must be demonstrated that both the foreign and US office will operate during the full period of the requested transfer.

Applications on behalf of L-1A managers and executives must demonstrate that the candidate currently works for the related foreign company, manages a “function” or supervises other individuals who are in supervisory or managerial positions, and will continue to do the same upon his or her transfer to the US. These individuals may later be eligible for a green card based on their status as Multinational Managers or Executives. The L-1A visa can be renewed for a total of seven years.

Individuals brought in under the L-1B Specialized Knowledge category must possess unique knowledge of the Petitioner’s product, knowledge which is not readily available in the US. Examples of the proper use of the L-1B visa would be the transfer of an employee to the US to train employees of the US entity to service the Petitioner’s product or to train sales staff in connection with necessary technical knowledge of the product. L-1B status does not support a green card application. The L-1B visa can be renewed for a total of six years.

A key requirement for the qualifying organization for L-1 purposes is that the U.S. or foreign company must be doing business as an employer in the United States and at least one other country during the entire period of the alien’s stay in the United States as an L-1 transferee. That business can be carried out directly or through a parent, branch, affiliate, or subsidiary.

The requirements for Applications for Permanent Resident Status as a Multinational Manager or Executive are similar to the requirements for the L-1A visa. Permanent Resident Status is frequently granted in less than one year due to the fact that there is currently no back log for this category. The lack of a back log is another reason why this is a perfect route to Permanent Resident Status in the US for certain employees of multinational companies.

Use of this tool is not limited to international conglomerates. Examples of companies I have worked with recently in obtaining benefits for a Multinational Manager or Executive include an Israeli based furniture representative which opened a show room in New York City, a Montreal based clothing wholesaler with a sales office in the US, a flooring manufacturer based in Portugal with a sales and distribution office in North Carolina, and the CEO of a company specializing in Duty Free Airline Sales and distribution as well as international banks and media groups. The key to success is a bona fide business. This is a win/win which allows the alien to receive immigration benefits and the economy to benefit through the opening of offices in the US which create jobs and add to our economy through the leasing of office space, and the use of services such as couriers, telephone services, etc.

It should be noted that neither the L-1nor the EB-1 application are for marginal businesses. L-1 visas for new offices are granted for a one-year period and will only be renewed upon a showing of growth, additional hires, etc. The EB-1 will not be granted to start-ups until they show at least one year of successful growth. Even given these reasonable restrictions, these are excellent tools for the entrepreneur who is interested in growing their company.



 

The views expressed in this document are solely the views of the author and not Martindale-Hubbell. This document is intended for informational purposes only and is not legal advice or a substitute for consultation with a licensed legal professional in a particular case or circumstance.
 

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