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  • Article: AAO Holds That Agent, Representative or Liaison Office Doing Business by Only Providing Continuous Flow of Goods and/or Services for Related Foreign Company Can Still Qualify Beneficiary for Permanent Residence as EB-1C Multinational Executive/Manager. By Alan Lee, Esq.

    AAO Holds That Agent, Representative or Liaison Office Doing Business by Only Providing Continuous Flow of Goods and/or Services for Related Foreign Company Can Still Qualify Beneficiary for Permanent Residence as EB-1C Multinational Executive/Manager

    by


    I am happy to report that one of our successful cases involving an L-1A intra-company transferee case seeking the green card through the EB-1C multinational executive/manager route, has been designated as a precedent decision by U.S.C.I.S.’ Appeals Adjudication Office (AAO) and will be applied as the law across the country. (Matter of Leacheng, 26 I & N Dec. 532 (AAO 2015) http://www.justice.gov/eoir/vll/intdec/vol26/3830.pdf ). The case was initially denied by the Texas Service Center of U.S.C.I.S. on the basis that the company was not doing business in the United States as contemplated by the regulations. Here the evidence did not show proof of business between the U. S. company and other companies in the traditional form of sales contracts and payments between the U. S. organization and U. S. customers. Instead the U. S. company’s revenue was through the overseas parent company, and another subsidiary of the parent company was the contracting party on all sales contracts with U. S. companies. The Texas Service Center Director cited the regulation that “doing business” meant the regular, systematic and continuous provision of goods and/or services by a firm, corporation or other entity and did not include the mere presence of an agent or office. He stated that the U. S. company had submitted various invoices and bills of lading, but that the only invoices and bills of lading for the relevant time requested were between the foreign entity and the petitioning company; that these documents did not indicate “doing business” with independent corporations or entities; and that they only demonstrated the shipment of goods from the foreign company to the U. S. company.

    On appeal, we pointed out that the U. S. company while not the contracting party on the sales contracts actually secured the contracts by marketing, designing, corresponding, and finalizing the terms of every contract, and that all shipments were sent to the U. S. company which delivered the goods to the customers. We argued that existing unpublished case law and the regulatory history of legacy INS in the L-1 context mandated the interpretation that the company’s business activities fell within the scope of “doing business”. (Reference to the L-1 regulation at 8 CFR §214.2(l)(3)(v)(C ) was appropriate as the same words “doing business” appear in both L-1 and EB-1C regulations).

    In the decision (designated by AAO as precedential on April 9, 2015), the appellate body made clear that the definition of “doing business” contained no requirement that a petitioning organization for a multinational manager or executive must provide goods and/or services to an unaffiliated third-party, and that such an organization could establish that it is “doing business” by demonstrating that it is providing goods and/or services in a regular, systematic, and continuous manner to related companies within its multinational organization. The AAO compared the regulatory histories of the L-1 discussion on doing business which recognized the provision of services as qualifying even if they were to a company outside the United States and that of the EB-1C final rule promulgating the current “doing business” definition in the green card context, said that the two were similar, and so declined to read a third party or non-affiliation requirement into the regulations. It finally pointed out that the fact that a petitioning organization serves as an agent, representative, or liaison between a related foreign entity and its United States customers does not preclude a finding that it is doing business as defined in the regulations, and that the petitioner here had established that it was doing business based on its regular, systematic, and continuous provision of services in the United States.

    The nationwide acceptance of the ruling now means that overseas companies may be able to establish and obtain L-1 visas and EB-1C green cards for their executives and managers even though their affiliated U. S. companies do not conduct traditional business with U. S. companies involving sales and receipts, but instead direct all of their efforts to providing a regular stream of goods and/or services for the overseas companies and/or their affiliates while in this country.

    Reprinted with permission.


    About The Author

    Alan Lee, Esq. Alan Lee is a 30+ year practitioner of immigration law based in New York City holding an AV preeminent rating in the Martindale-Hubbell Law Director, registered in the Bar Register of Preeminent Lawyers, on the New York Super Lawyers list (2011-12, 2013-14, 2014-2015), and recognized as a New York Area Top Rated Lawyer. He was awarded the Sidney A. Levine prize for best legal writing at the Cleveland-Marshall College of Law in 1977 and has written extensively on immigration over the past years for Interpreter Releases, Immigration Daily, and the ethnic newspapers, World Journal, Sing Tao, Pakistan Calling, Muhasba and OCS. He has testified as an expert on immigration in civil court proceedings and was recognized by the Taiwan government in 1985 for his work protecting human rights. His article, "The Bush Temporary Worker Proposal and Comparative Pending Legislation: an Analysis" was Interpreter Releases' cover display article at the American Immigration Lawyers Association annual conference in 2004, and his victory in the Second Circuit Court of Appeals in a case of first impression nationwide, Firstland International v. INS, successfully challenged INS' policy of over 40 years of revoking approved immigrant visa petitions under a nebulous standard of proof. Its value as precedent, however, was short-lived as it was specifically targeted by the Bush Administration in the Intelligence Reform Act of 2004.


    The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.

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