The Critical Importance of an L-1 "New Office" Business Plan

by Joseph P. Whalen


I. Introduction.

One way for a foreign company to break into the U.S. market is to transfer an employee to the U.S. The nonimmigrant visa category for this is the L-1 Intracompany Transferee. This sometimes entails sending an executive or managerial employee (L1-A) to open a new office in the U.S.  or much less frequently, an employee possessing specialized knowledge (L1-B).  New office petitions require additional evidence than other transferee petitions.  Approved new office petitions are initially limited to one year rather than three years.  If the new office is successful, an extension may be applied for but unlike other transferee extension petitions, extra evidence is again required.

The use of a solid Business Plan (BP) with the initial petition is not an absolute legal requirement; it just makes damn good sense. It does so because it is helpful if an extension of stay is requested as should be expected.  The follow up evidence demanded with an extension petition is easier to come up with if a solid BP is used as a blueprint and road map for collecting appropriate evidence over the course of doing business in the initial year of operation. While individual businesses can vary greatly from one another and thus the specific details will vary greatly from one BP to the next, the major components of a decent BP are well known to professional technical writers.

Matter of LeBlanc, 13 I&N Dec. 816 (R.C. 1971)[1] addressed, as a matter of first impression, the concept of an L-1 visa being issued to an employee being transferred to the U.S, to open a new office.  The Regional Commissioner found that such activity was not precluded under the law as it existed in 1971. The sticking point for the Los Angeles District Director had been the prospective nature of the planned activity, and the language used in the petitioner’s support letter, specifically that LeBlanc was coming to the U.S. to establish a new office here. By the time of the appeal process later in November 1971, premises had been leased, with full access beginning January 1, 1972 and limited access before then

At present, it is perfectly acceptable for an L-1 to be issued for the purpose of establishing a new office and it is thoroughly addressed in the regulations. The evidentiary requirements do, however, include demonstrating that premises have been secured. As you will see below, 8 CFR § 214.2 (l)(3) (v)(C)(1-3) and (vi)(A-C) provides some specifics that one would expect to see in a solid BP. Beyond that we start to get into the weeds. Thus , one needs to rely on the professional technical writer to do her or his best to support the requested chance to expand the business into the United States market.

II. Statutory Provisions and Regulation Under Discussion.

            I have copied and pasted the useful parts of the statute below.  As for the regulation, I copied the whole thing and added emphasis with underlining and highlighting.

8 USC[2] §1101. Definitions

 

(a) As used in this chapter-

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(15) The term "immigrant" means every alien except an alien who is within one of the following classes of nonimmigrant aliens-

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(L) subject to section 1184(c)(2)[3] of this title, an alien who, within 3 years preceding the time of his application for admission into the United States, has been employed continuously for one year by a firm or corporation or other legal entity or an affiliate or subsidiary thereof and who seeks to enter the United States temporarily in order to continue to render his services to the same employer or a subsidiary or affiliate thereof in a capacity that is managerial, executive, or involves specialized knowledge, and the alien spouse and minor children of any such alien if accompanying him or following to join him;

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(44)

(A) The term "managerial capacity" means an assignment within an organization in which the employee primarily-

 

(i) manages the organization, or a department, subdivision, function, or component of the organization;

(ii) supervises and controls the work of other supervisory, professional, or managerial employees, or manages an essential function within the organization, or a department or subdivision of the organization;

(iii) if another employee or other employees are directly supervised, has the authority to hire and fire or recommend those as well as other personnel actions (such as promotion and leave authorization) or, if no other employee is directly supervised, functions at a senior level within the organizational hierarchy or with respect to the function managed; and

(iv) exercises discretion over the day-to-day operations of the activity or function for which the employee has authority.

A first-line supervisor is not considered to be acting in a managerial capacity merely by virtue of the supervisor's supervisory duties unless the employees supervised are professional.

 

(B) The term "executive capacity" means an assignment within an organization in which the employee primarily-

(i) directs the management of the organization or a major component or function of the organization;

(ii) establishes the goals and policies of the organization, component, or function;

(iii) exercises wide latitude in discretionary decision-making; and

(iv) receives only general supervision or direction from higher level executives, the board of directors, or stockholders of the organization.

 

(C) If staffing levels are used as a factor in determining whether an individual is acting in a managerial or executive capacity, the Attorney General [Secretary of Homeland Security] shall take into account the reasonable needs of the organization, component, or function in light of the overall purpose and stage of development of the organization, component, or function. An individual shall not be considered to be acting in a managerial or executive capacity (as previously defined) merely on the basis of the number of employees that the individual supervises or has supervised or directs or has directed.

8 CFR § 214.2  Special requirements for admission, extension, and maintenance of status.

The general requirements in § 214.1 are modified for the following nonimmigrant classes:

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(l)  Intracompany transferees -

(1) Admission of intracompany transferees -

(i) General. Under section 101(a)(15)(L) of the Act, an alien who within the preceding three years has been employed abroad for one continuous year by a qualifying organization may be admitted temporarily to the United States to be employed by a parent, branch, affiliate, or subsidiary of that employer in a managerial or executive capacity, or in a position requiring specialized knowledge. An alien transferred to the United States under this nonimmigrant classification is referred to as an intracompany transferee and the organization which seeks the classification of an alien as an intracompany transferee is referred to as the petitioner. The Service has responsibility for determining whether the alien is eligible for admission and whether the petitioner is a qualifying organization. These regulations set forth the standards applicable to these classifications. They also set forth procedures for admission of intracompany transferees and appeal of adverse decisions. Certain petitioners seeking the classification of aliens as intracompany transferees may file blanket petitions with the Service. Under the blanket petition process, the Service is responsible for determining whether the petitioner and its parent, branches, affiliates, or subsidiaries specified are qualifying organizations. The Department of State or, in certain cases, the Service is responsible for determining the classification of the alien.

(ii) Definitions -

(A) Intracompany transferee means an alien who, within three years preceding the time of his or her application for admission into the United States, has been employed abroad continuously for one year by a firm or corporation or other legal entity or parent, branch, affiliate, or subsidiary thereof, and who seeks to enter the United States temporarily in order to render his or her services to a branch of the same employer or a parent, affiliate, or subsidiary thereof in a capacity that is managerial, executive, or involves specialized knowledge. Periods spent in the United States in lawful status for a branch of the same employer or a parent, affiliate, or subsidiary thereof and brief trips to the United States for business or pleasure shall not be interruptive of the one year of continuous employment abroad but such periods shall not be counted toward fulfillment of that requirement.

(B) Managerial capacity means an assignment within an organization in which the employee primarily:

(1) Manages the organization, or a department, subdivision, function, or component of the organization;

(2) Supervises and controls the work of other supervisory, professional, or managerial employees, or manages an essential function within the organization, or a department or subdivision of the organization;

(3) Has the authority to hire and fire or recommend those as well as other personnel actions (such as promotion and leave authorization) if another employee or other employees are directly supervised; if no other employee is directly supervised, functions at a senior level within the organizational hierarchy or with respect to the function managed; and

(4) Exercises discretion over the day-to-day operations of the activity or function for which the employee has authority. A first-line supervisor is not considered to be acting in a managerial capacity merely by virtue of the supervisor's supervisory duties unless the employees supervised are professional.

(C) Executive capacity means an assignment within an organization in which the employee primarily:

(1) Directs the management of the organization or a major component or function of the organization;

(2) Establishes the goals and policies of the organization, component, or function;

(3) Exercises wide latitude in discretionary decision-making; and

(4) Receives only general supervision or direction from higher level executives, the board of directors, or stockholders of the organization.

(D) Specialized knowledge means special knowledge possessed by an individual of the petitioning organization's product, service, research, equipment, techniques, management, or other interests and its application in international markets, or an advanced level of knowledge or expertise in the organization's processes and procedures.

(E) Specialized knowledge professional means an individual who has specialized knowledge as defined in paragraph (l)(1)(ii)(D) of this section and is a member of the professions as defined in section 101(a)(32) of the Immigration and Nationality Act.

(F) New office means an organization which has been doing business in the United States through a parent, branch, affiliate, or subsidiary for less than one year.

(G) Qualifying organization means a United States or foreign firm, corporation, or other legal entity which:

(1) Meets exactly one of the qualifying relationships specified in the definitions of a parent, branch, affiliate or subsidiary specified in paragraph (l)(1)(ii) of this section;

(2) Is or will be doing business (engaging in international trade is not required) as an employer in the United States and in at least one other country directly or through a parent, branch, affiliate, or subsidiary for the duration of the alien's stay in the United States as an intracompany transferee; and

(3) Otherwise meets the requirements of section 101(a)(15)(L) of the Act.

(H) Doing business means the regular, systematic, and continuous provision of goods and/or services by a qualifying organization and does not include the mere presence of an agent or office of the qualifying organization in the United States and abroad.

(I) Parent means a firm, corporation, or other legal entity which has subsidiaries.

(J) Branch means an operating division or office of the same organization housed in a different location.

(K) Subsidiary means a firm, corporation, or other legal entity of which a parent owns, directly or indirectly, more than half of the entity and controls the entity; or owns, directly or indirectly, half of the entity and controls the entity; or owns, directly or indirectly, 50 percent of a 50-50 joint venture and has equal control and veto power over the entity; or owns, directly or indirectly, less than half of the entity, but in fact controls the entity.

(L) Affiliate means

(1) One of two subsidiaries both of which are owned and controlled by the same parent or individual, or

(2) One of two legal entities owned and controlled by the same group of individuals, each individual owning and controlling approximately the same share or proportion of each entity, or

(3) In the case of a partnership that is organized in the United States to provide accounting services along with managerial and/or consulting services and that markets its accounting services under an internationally recognized name under an agreement with a worldwide coordinating organization that is owned and controlled by the member accounting firms, a partnership (or similar organization) that is organized outside the United States to provide accounting services shall be considered to be an affiliate of the United States partnership if it markets its accounting services under the same internationally recognized name under the agreement with the worldwide coordinating organization of which the United States partnership is also a member.

(M) Director means a Service Center director with delegated authority at 8 CFR 103.1.

(2) Filing of petitions.

(i) Except as provided in paragraph (l)(2)(ii) and (l)(17) of this section, a petitioner seeking to classify an alien as an intracompany transferee must file a petition on the form prescribed by USCIS. The petitioner shall advise USCIS whether a previous petition for the same beneficiary has been filed, and certify that another petition for the same beneficiary will not be filed unless the circumstances and conditions in the initial petition have changed. Failure to make a full disclosure of previous petitions filed may result in a denial of the petition.

(ii) A United States petitioner which meets the requirements of paragraph (l)(4) of this section and seeks continuing approval of itself and its parent, branches, specified subsidiaries and affiliates as qualifying organizations and, later, classification under section 101(a)(15)(L) of the Act multiple numbers of aliens employed by itself, its parent, or those branches, subsidiaries, or affiliates may file a blanket petition on the form prescribed by USCIS. The blanket petition shall be maintained at the adjudicating office. The petitioner shall be the single representative for the qualifying organizations with which USCIS will deal regarding the blanket petition.

(3) Evidence for individual petitions. An individual petition filed on the form prescribed by USCIS shall be accompanied by:

(i) Evidence that the petitioner and the organization which employed or will employ the alien are qualifying organizations as defined in paragraph (l)(1)(ii)(G) of this section.

(ii) Evidence that the alien will be employed in an executive, managerial, or specialized knowledge capacity, including a detailed description of the services to be performed.

(iii) Evidence that the alien has at least one continuous year of full-time employment abroad with a qualifying organization within the three years preceding the filing of the petition.

(iv) Evidence that the alien's prior year of employment abroad was in a position that was managerial, executive, or involved specialized knowledge and that the alien's prior education, training, and employment qualifies him/her to perform the intended services in the United States; however, the work in the United States need not be the same work which the alien performed abroad.

(v) If the petition indicates that the beneficiary is coming to the United States as a manager or executive to open or to be employed in a new office in the United States, the petitioner shall submit evidence that:

(A) Sufficient physical premises to house the new office have been secured;

(B) The beneficiary has been employed for one continuous year in the three year period preceding the filing of the petition in an executive or managerial capacity and that the proposed employment involved executive or managerial authority over the new operation; and

(C) The intended United States operation, within one year of the approval of the petition, will support an executive or managerial position as defined in paragraphs (l)(1)(ii) (B) or (C) of this section, supported by information regarding:

(1) The proposed nature of the office describing the scope of the entity, its organizational structure, and its financial goals;

(2) The size of the United States investment and the financial ability of the foreign entity to remunerate the beneficiary and to commence doing business in the United States; and

(3) The organizational structure of the foreign entity.

(vi) If the petition indicates that the beneficiary is coming to the United States in a specialized knowledge capacity to open or to be employed in a new office, the petitioner shall submit evidence that:

(A) Sufficient physical premises to house the new office have been secured;

(B) The business entity in the United States is or will be a qualifying organization as defined in paragraph (l)(1)(ii)(G) of this section; and

(C) The petitioner has the financial ability to remunerate the beneficiary and to commence doing business in the United States.

(vii) If the beneficiary is an owner or major stockholder of the company, the petition must be accompanied by evidence that the beneficiary's services are to be used for a temporary period and evidence that the beneficiary will be -transferred to an assignment abroad upon the completion of the temporary services in the United States.

(viii) Such other evidence as the director, in his or her discretion, may deem necessary.

(4) Blanket petitions.

(i) A petitioner which meets the following requirements may file a blanket petition seeking continuing approval of itself and some or all of its parent, branches, subsidiaries, and affiliates as qualifying organizations if:

(A) The petitioner and each of those entities are engaged in commercial trade or services;

(B) The petitioner has an office in the United States that has been doing business for one year or more;

(C) The petitioner has three or more domestic and foreign branches, subsidiaries, or affiliates; and

(D) The petitioner and the other qualifying organizations have obtained approval of petitions for at least ten “L” managers, executives, or specialized knowledge professionals during the previous 12 months; or have U.S. subsidiaries or affiliates with combined annual sales of at least $25 million; or have a United States work force of at least 1,000 employees.

(ii) Managers, executives, and specialized knowledge professionals employed by firms, corporations, or other entities which have been found to be qualifying organizations pursuant to an approved blanket petition may be classified as intracompany transferees and admitted to the United States as provided in paragraphs (l) (5) and (11) of this section.

(iii) When applying for a blanket petition, the petitioner shall include in the blanket petition all of its branches, subsidiaries, and affiliates which plan to seek to transfer aliens to the United States under the blanket petition. An individual petition may be filed by the petitioner or organizations in lieu of using the blanket petition procedure. However, the petitioner and other qualifying organizations may not seek L classification for the same alien under both procedures, unless a consular officer first denies eligibility. Whenever a petitioner which has blanket L approval files an individual petition to seek L classification for a manager, executive, or specialized knowledge professional, the petitioner shall advise the Service that it has blanket L approval and certify that the beneficiary has not and will not apply to a consular officer for L classification under the approved blanket petition.

(iv) Evidence. A blanket petition filed on the form prescribed by USCIS shall be accompanied by:

(A) Evidence that the petitioner meets the requirements of paragraph (l)(4)(i) of this section.

(B) Evidence that all entities for which approval is sought are qualifying organizations as defined in subparagraph (l)(1)(ii)(G) of this section.

(C) Such other evidence as the director, in his or her discretion, deems necessary in a particular case.

(5) Certification and admission procedures for beneficiaries under blanket petition -

(i) Jurisdiction. United States consular officers shall have authority to determine eligibility of individual beneficiaries outside the United States seeking L classification under blanket petitions, except for visa-exempt nonimmigrants. An application for a visa-exempt nonimmigrant seeking L classification under a blanket petition or by an alien in the United States applying for change of status to L classification under a blanket petition shall be filed with the Service office at which the blanket petition was filed.

(ii) Procedures.

(A) When one qualifying organization listed in an approved blanket petition wishes to transfer an alien outside the United States to a qualifying organization in the United States and the alien requires a visa to enter the United States, that organization shall complete Form I-129S, Certificate of Eligibility for Intracompany Transferee under a Blanket Petition, in an original and three copies. The qualifying organization shall retain one copy for its records and send the original and two copies to the alien. A copy of the approved Form I-797 must be attached to the original and each copy of Form I-129S.

(B) After receipt of Form I-797 and Form I-129S, a qualified employee who is being transferred to the United States may use these documents to apply for visa issuance with the consular officer within six months of the date on Form I-129S.

(C) When the alien is a visa-exempt nonimmigrant seeking L classification under a blanket petition, or when the alien is in the United States and is seeking a change of status from another nonimmigrant classification to L classification under a blanket petition, the petitioner shall submit Form I-129S, Certificate of Eligibility, and a copy of the approval notice, Form I-797, to the USCIS office with which the blanket petition was filed.

(D) The consular or Service officer shall determine whether the position in which the alien will be employed in the United States is with an organization named in the approved petition and whether the specific job is for a manager, executive, or specialized knowledge professional. The consular or Service officer shall determine further whether the alien's immediate prior year of continuous employment abroad was with an organization named in the petition and was in a position as manager, executive, or specialized knowledge professional.

(E) Consular officers may grant “L” classification only in clearly approvable applications. If the consular officer determines that the alien is eligible for L classification, the consular officer may issue a nonimmigrant visa, noting the visa classification “Blanket L-1” for the principal alien and “Blanket L-2” for any accompanying or following to join spouse and children. The consular officer shall also endorse all copies of the alien's Form I-129S with the blanket L-1 visa classification and return the original and one copy to the alien. When the alien is inspected for entry into the United States, both copies of the Form I-129S shall be stamped to show a validity period not to exceed three years and the second copy collected and sent to the appropriate Regional Service Center for control purposes. Service officers who determine eligibility of aliens for L-1 classification under blanket petitions shall endorse both copies of Form I-129S with the blanket L-1 classification and the validity period not to exceed three years and retain the second copy for Service records.

(F) If the consular officer determines that the alien is ineligible for L classification under a blanket petition, the consular officer's decision shall be final. The consular officer shall record the reasons for the denial on Form I-129S, retain one copy, return the original of I-129S to the USCIS office which approved the blanket petition, and provide a copy to the alien. In such a case, an individual petition may be filed for the alien on the form prescribed by USCIS. The petition shall state the reason the alien was denied L classification and specify the consular office which made the determination and the date of the determination.

(G) An alien admitted under an approved blanket petition may be reassigned to any organization listed in the approved petition without referral to the Service during his/her authorized stay if the alien will be performing virtually the same job duties. If the alien will be performing different job duties, the petitioner shall complete a new Certificate of Eligibility and send it for approval to the director who approved the blanket petition.

(6) Copies of supporting documents. The petitioner may submit a legible photocopy of a document in support of the visa petition, in lieu of the original document. However, the original document shall be submitted if requested by the Service.

(7) Approval of petition -

(i) General. The director shall notify the petitioner of the approval of an individual or a blanket petition within 30 days after the date a completed petition has been filed. If additional information is required from the petitioner, the 30 day processing period shall begin again upon receipt of the information. The original Form I-797 received from the USCIS with respect to an approved individual or blanket petition may be duplicated by the petitioner for the beneficiary's use as described in paragraph (l)(13) of this section.

(A) Individual petition -

(1) Form I-797 shall include the beneficiary's name and classification and the petition's period of validity.

(2) An individual petition approved under this paragraph shall be valid for the period of established need for the beneficiary's services, not to exceed three years, except where the beneficiary is coming to the United States to open or to be employed in a new office.

(3) If the beneficiary is coming to the United States to open or be employed in a new office, the petition may be approved for a period not to exceed one year, after which the petitioner shall demonstrate as required by paragraph (l)(14)(ii) of this section that it is doing business as defined in paragraph (l) (1)(ii)(H) of this section to extend the validity of the petition.

(B) Blanket petition.

(1) Form I-797 shall identify the approved organizations included in the petition and the petition's period of validity.

(2) A blanket petition approved under this paragraph shall be valid initially for a period of three years and may be extended indefinitely thereafter if the qualifying organizations have complied with these regulations.

(3) A blanket petition may be approved in whole or in part and shall cover only qualifying organizations.

(C) Amendments. The petitioner must file an amended petition, with fee, at the USCIS office where the original petition was filed to reflect changes in approved relationships, additional qualifying organizations under a blanket petition, change in capacity of employment (i.e., from a specialized knowledge position to a managerial position), or any information which would affect the beneficiary's eligibility under section 101(a)(15)(L) of the Act.

(ii) Spouse and dependents. The spouse and unmarried minor children of the beneficiary are entitled to L nonimmigrant classification, subject to the same period of admission and limits as the beneficiary, if the spouse and unmarried minor children are accompanying or following to join the beneficiary in the United States. Neither the spouse nor any child may accept employment unless he or she has been granted employment authorization.

(8) Denial of petition -

(i) Individual petition. If an individual is denied, the petitioner shall be notified within 30 days after the date a completed petition has been filed of the denial, the reasons for the denial, and the right to appeal the denial.

(ii) Blanket petition. If a blanket petition is denied in whole or in part, the petitioner shall be notified within 30 days after the date a completed petition has been filed of the denial, the reasons for the denial, and the right to appeal the denial. If the petition is denied in part, the USCIS office issuing the denial shall forward to the petitioner, along with the denial, a Form I-797 listing those organizations which were found to qualify. If the decision to deny is reversed on appeal, a new Form I-797 shall be sent to the petitioner to reflect the changes made as a result of the appeal.

(9) Revocation of approval of individual and blanket petitions -

(i) General. The director may revoke a petition at any time, even after the expiration of the petition.

(ii) Automatic revocation. The approval of any individual or blanket petition is automatically revoked if the petitioner withdraws the petition or the petitioner fails to request indefinite validity of a blanket petition.

(iii) Revocation on notice.

(A) The director shall send to the petitioner a notice of intent to revoke the petition in relevant part if he/she finds that:

(1) One or more entities are no longer qualifying organizations;

(2) The alien is no longer eligible under section 101(a)(15)(L) of the Act;

(3) A qualifying organization(s) violated requirements of section 101(a)(15)(L) and these regulations;

(4) The statement of facts contained in the petition was not true and correct; or

(5) Approval of the petition involved gross error; or

(6) None of the qualifying organizations in a blanket petition have used the blanket petition procedure for three consecutive years.

(B) The notice of intent to revoke shall contain a detailed statement of the grounds for the revocation and the time period allowed for the petitioner's rebuttal. Upon receipt of this notice, the petitioner may submit evidence in rebuttal within 30 days of the notice. The director shall consider all relevant evidence presented in deciding whether to revoke the petition in whole or in part. If a blanket petition is revoked in part, the remainder of the petition shall remain approved, and a revised Form I-797 shall be sent to the petitioner with the revocation notice.

(iv) Status of beneficiaries. If an individual petition is revoked, the beneficiary shall be required to leave the United States, unless the beneficiary has obtained other work authorization from the Service. If a blanket petition is revoked and the petitioner and beneficiaries already in the United States are otherwise eligible for L classification, the director shall extend the blanket petition for a period necessary to support the stay of those blanket L beneficiaries. The approval notice, Form I-171C, shall include only the names of qualifying organizations and covered beneficiaries. No new beneficiaries may be classified or admitted under this limited extension.

(10) Appeal of denial or revocation of individual or blanket petition.

(i) A petition denied in whole or in part may be appealed under 8 CFR part 103. Since the determination on the Certificate of Eligibility, Form I-129S, is part of the petition process, a denial or revocation of approval of an I-129S is appealable in the same manner as the petition.

(ii) A petition that has been revoked on notice in whole or in part may be appealed under part 103 of this chapter. Automatic revocations may not be appealed.

(11) Admission. A beneficiary may apply for admission to the United States only while the individual or blanket petition is valid. The beneficiary of an individual petition shall not be admitted for a date past the validity period of the petition. The beneficiary of a blanket petition may be admitted for three years even though the initial validity period of the blanket petition may expire before the end of the three-year period. If the blanket petition will expire while the alien is in the United States, the burden is on the petitioner to file for indefinite validity of the blanket petition or to file an individual petition in the alien's behalf to support the alien's status in the United States. The admission period for any alien under section 101(a)(15)(L) shall not exceed three years unless an extension of stay is granted pursuant to paragraph (l)(15) of this section.

(12) L-1 limitation on period of stay -

(i) Limits. An alien who has spent five years in the United States in a specialized knowledge capacity or seven years in the United States in a managerial or executive capacity under section 101(a)(15) (L) and/or (H) of the Act may not be readmitted to the United States under section 101(a)(15) (L) or (H) of the Act unless the alien has resided and been physically present outside the United States, except for brief visits for business or pleasure, for the immediate prior year. Such visits do not interrupt the one year abroad, but do not count towards fulfillment of that requirement. In view of this restriction, a new individual petition may not be approved for an alien who has spent the maximum time period in the United States under section 101(a)(15) (L) and/or (H) of the Act, unless the alien has resided and been physically present outside the United States, except for brief visits for business or pleasure, for the immediate prior year. The petitioner shall provide information about the alien's employment, place of residence, and the dates and purpose of any trips to the United States for the previous year. A consular or Service officer may not grant L classification under a blanket petition to an alien who has spent five years in the United States as a professional with specialized knowledge or seven years in the United States as a manager or executive, unless the alien has met the requirements contained in this paragraph.

(ii) Exceptions. The limitations of paragraph (l)(12)(i) of this section shall not apply to aliens who do not reside continually in the United States and whose employment in the United States is seasonal, intermittent, or consists of an aggregate of six months or less per year. In addition, the limitations will not apply to aliens who reside abroad and regularly commute to the United States to engage in part-time employment. The petitioner and the alien must provide clear and convincing proof that the alien qualifies for an exception. Clear and convincing proof shall consist of evidence such as arrival and departure records, copies of tax returns, and records of employment abroad.

(13) Beneficiary's use of Form I-797 and Form I-129S -

(i) Beneficiary of an individual petition. The beneficiary of an individual petition who does not require a nonimmigrant visa may present a copy of Form I-797 at a port of entry to facilitate entry into the United States. The copy of Form I-797 shall be retained by the beneficiary and presented during the validity of the petition (provided that the beneficiary is entering or reentering the United States) for entry and reentry to resume the same employment with the same petitioner (within the validity period of the petition) and to apply for an extension of stay. A beneficiary who is required to present a visa for admission and whose visa will have expired before the date of his or her intended return may use an original Form I-797 to apply for a new or revalidated visa during the validity period of the petition and to apply for an extension of stay.

(ii) Beneficiary of a blanket petition. Each alien seeking L classification and admission under a blanket petition shall present a copy of Form I-797 and a Form I-129S from the petitioner which identifies the position and organization from which the employee is transferring, the new organization and position to which the employee is destined, a description of the employee's actual duties for both the new and former positions, and the positions, dates, and locations of previous L stays in the United States. A current copy of Form I-797 and Form I-129S should be retained by the beneficiary and used for leaving and reentering the United States to resume employment with a qualifying organization during his/her authorized period of stay, for applying for a new or revalidated visa, and for applying for readmission at a port of entry. The alien may be readmitted even though reassigned to a different organization named on the Form I-797 than the one shown on Form I-129S if the job duties are virtually the same.

(14) Extension of visa petition validity -

(i) Individual petition. The petitioner shall file a petition extension on Form I-129 to extend an individual petition under section 101(a)(15)(L) of the Act. Except in those petitions involving new offices, supporting documentation is not required, unless requested by the director. A petition extension may be filed only if the validity of the original petition has not expired.

(ii) New offices. A visa petition under section 101(a)(15)(L) which involved the opening of a new office may be extended by filing a new application or petition, accompanied by the following:

(A) Evidence that the United States and foreign entities are still qualifying organizations as defined in paragraph (l)(1)(ii)(G) of this section;

(B) Evidence that the United States entity has been doing business as defined in paragraph (l)(1)(ii)(H) of this section for the previous year;

(C) A statement of the duties performed by the beneficiary for the previous year and the duties the beneficiary will perform under the extended petition;

(D) A statement describing the staffing of the new operation, including the number of employees and types of positions held accompanied by evidence of wages paid to employees when the beneficiary will be employed in a managerial or executive capacity; and

(E) Evidence of the financial status of the United States operation.

(iii) Blanket petitions -

(A) Extension procedure. A blanket petition may only be extended indefinitely by filing a new Form I-129 with a copy of the previous approval notice and a report of admissions during the preceding three years. The report of admissions shall include a list of the aliens admitted under the blanket petition during the preceding three years, including positions held during that period, the employing entity, and the dates of initial admission and final departure of each alien. The petitioner shall state whether it still meets the criteria for filing a blanket petition and shall document any changes in approved relationships and additional qualifying organizations.

(B) Other conditions. If the petitioner in an approved blanket petition fails to request indefinite validity or if indefinite validity is denied, the petitioner and its other qualifying organizations shall seek L classification by filing individual petitions until another three years have expired; after which the petitioner may seek approval of a new blanket petition.

(15) Extension of stay.

(i) In individual petitions, the petitioner must apply for the petition extension and the alien's extension of stay concurrently on Form I-129. When the alien is a beneficiary under a blanket petition, a new certificate of eligibility, accompanied by a copy of the previous approved certificate of eligibility, shall be filed by the petitioner to request an extension of the alien's stay. The petitioner must also request a petition extension. The dates of extension shall be the same for the petition and the beneficiary's extension of stay. The beneficiary must be physically present in the United States at the time the extension of stay is filed. Even though the requests to extend the visa petition and the alien's stay are combined on the petition, the director shall make a separate determination on each. If the alien is required to leave the United States for business or personal reasons while the extension requests are pending, the petitioner may request the director to cable notification of approval of the petition extension to the consular office abroad where the alien will apply for a visa.

(ii) An extension of stay may be authorized in increments of up to two years for beneficiaries of individual and blanket petitions. The total period of stay may not exceed five years for aliens employed in a specialized knowledge capacity. The total period of stay for an alien employed in a managerial or executive capacity may not exceed seven years. No further extensions may be granted. When an alien was initially admitted to the United States in a specialized knowledge capacity and is later promoted to a managerial or executive position, he or she must have been employed in the managerial or executive position for at least six months to be eligible for the total period of stay of seven years. The change to managerial or executive capacity must have been approved by the Service in an amended, new, or extended petition at the time that the change occurred.

(16) Effect of filing an application for or approval of a permanent labor certification, preference petition, or filing of an application for adjustment of status on L-1 classification. An alien may legitimately come to the United States for a temporary period as an L-1 nonimmigrant and, at the same time, lawfully seek to become a permanent resident of the United States provided he or she intends to depart voluntarily at the end of his or her authorized stay. The filing of an application for or approval of a permanent labor certification, an immigrant visa preference petition, or the filing of an application of readjustment of status for an L-1 nonimmigrant shall not be the basis for denying:

(i) An L-1 petition filed on behalf of the alien,

(ii) A request to extend an L-1 petition which had previously been filed on behalf of the alien;

(iii) An application for admission as an L-1 nonimmigrant by the alien, or as an L-2 nonimmigrant by the spouse or child of such alien;

(iv) An application for change of status to H-1 or L-2 nonimmigrant filed by the alien, or to H-1, H-4, or L-1 status filed by the L-2 spouse or child of such alien;

(v) An application for change of status to H-4 nonimmigrant filed by the L-1 nonimmigrant, if his or her spouse has been approved for classification as an H-1; or

(vi) An application for extension of stay filed by the alien, or by the L-2 spouse or child of such alien.

(17) Filing of individual petitions and certifications under blanket petitions for citizens of Canada under the Agreement Between the United States of America, the United Mexican States, and Canada (USMCA) -

(i) Individual petitions. Except as provided in paragraph (1)(2)(ii) of this section (filing of blanket petitions), a United States or foreign employer seeking to classify a citizen of Canada as an intracompany transferee may file an individual petition in duplicate on the form prescribed by USCIS in conjunction with an application for admission of the citizen of Canada. Such filing may be made with an immigration officer at a Class A port of entry located on the United States-Canada land border or at a United States pre-clearance/pre-flight station in Canada. The petitioning employer need not appear, but the form prescribed by USCIS must bear the authorized signature of the petitioner.

(ii) Certification of eligibility for intracompany transferee under the blanket petition. An immigration officer at a location identified in paragraph (1)(17)(i) of this section may determine eligibility of individual citizens of Canada seeking L classification under approved blanket petitions. At these locations, such citizens of Canada shall present the original and two copies of Form I-129S, Intracompany Transferee Certificate of Eligibility, prepared by the approved organization, as well as three copies of Form I-797, Notice of Approval of Nonimmigrant Visa Petition.

(iii) Nothing in this section shall preclude or discourage the advance filing of petitions and certificates of eligibility in accordance with paragraph (l)(2) of this section.

(iv) Deficient or deniable petitions or certificates of eligibility. If a petition or certificate of eligibility submitted concurrently with an application for admission is lacking necessary supporting documentation or is otherwise deficient, the inspecting immigration officer shall return it to the applicant for admission in order to obtain the necessary documentation from the petitioner or for the deficiency to be overcome. The fee to file the petition will be remitted at such time as the documentary or other deficiency is overcome. If the petition or certificate of eligibility is clearly deniable, the immigration officer will accept the petition (with fee) and the petitioner shall be notified of the denial, the reasons for denial, and the right of appeal. If a formal denial order cannot be issued by the port of entry, the petition with a recommendation for denial shall be forwarded to the appropriate Service Center for final action. For the purposes of this provision, the appropriate Service Center will be the one within the same Service region as the location where the application for admission is made.

(v) Spouse and dependent minor children accompanying or following to join.

(A) The Canadian citizen spouse and Canadian citizen unmarried minor children of a Canadian citizen admitted under this paragraph shall be entitled to the same nonimmigrant classification and same length of stay subject to the same limits as the principal alien. They shall not be required to present visas, and they shall be admitted under the classification symbol L-2.

(B) A non-Canadian citizen spouse or non-Canadian citizen unmarried minor child shall be entitled to the same nonimmigrant classification and the same length of stay subject to the same limits as the principal, but shall be required to present a visa upon application for admission as an L-2 unless otherwise exempt under § 212.1 of this chapter.

(C) The spouse and dependent minor children shall not accept employment in the United States unless otherwise authorized under the Act.

(18) Denial of intracompany transferee status to citizens of Canada or Mexico in the case of certain labor disputes.

(i) If the Secretary of Labor certifies to or otherwise informs the Commissioner that a strike or other labor dispute involving a work stoppage of workers is in progress where the beneficiary is to be employed, and the temporary entry of the beneficiary may affect adversely the settlement of such labor dispute or the employment of any person who is involved in such dispute, a petition to classify a citizen of Mexico or Canada as an L-1 intracompany transferee may be denied. If a petition has already been approved, but the alien has not yet entered the United States, or has entered the United States but not yet commenced employment, the approval of the petition may be suspended, and an application for admission on the basis of the petition may be denied.

(ii) If there is a strike or other labor dispute involving a work stoppage of workers in progress, but such strike or other labor dispute is not certified under paragraph (l)(18)(i) of this section, or the Service has not otherwise been informed by the Secretary that such a strike or labor dispute is in progress, the Commissioner shall not deny a petition or suspend an approved petition.

(iii) If the alien has already commended employment in the United States under an approved petition and is participating in a strike or other labor dispute involving a work stoppage of workers, whether or not such strike or other labor dispute has been certified by the Department of Labor, the alien shall not be deemed to be failing to maintain his or her status solely on account of past, present, or future participation in a strike or other labor dispute involving a work stoppage of workers, but is subject to the following terms and conditions.

(A) The alien shall remain subject to all applicable provisions of the Immigration and Nationality Act, and regulations promulgated in the same manner as all other L nonimmigrants;

(B) The status and authorized period of stay of such an alien is not modified or extended in any way by virtue of his or her participation in a strike or other labor dispute involving work stoppage of workers; and

(C) Although participation by an L nonimmigrant alien in a strike or other labor dispute involving a work stoppage of workers will not constitute a ground for deportation, any alien who violates his or her status or who remains in the United States after his or her authorized period of stay has expired will be subject to deportation.

III. Other useful resources.

Matter of F-M- Co., Adopted Decision 2020-01 (AAO May 5, 2020) was issued as a Policy Memorandum (PM) and like all such memoranda, is binding on USCIS Adjudicators in the course of their casework.

Matter of F-M- Co. clarifies that for first preference multinational executives or managers, a petitioner must have a qualifying relationship with the beneficiary’s foreign employer at the time the petition is filed and must maintain that relationship until the petition is adjudicated. Matter of F-M- Co. also clarifies that in the event a corporate restructuring affecting the foreign entity occurs prior to the filing of the petition, a petitioner may establish that the beneficiary’s qualifying foreign employer continues to exist and do business through a valid successor entity.”

Id., p. 1  Although this decision relates directly to the immigrant visa category, the same principles apply to the nonimmigrant visa.  They both rely on the same definitions in determining the underlying relationships between business entities.

Matter of S-P-, Inc., Adopted Decision 2018-01 (AAO Mar. 19, 2018):

Matter of S-P-, Inc. clarifies that a beneficiary who worked abroad for a qualifying multinational organization for at least one year, but left its employ for a period of more than two years after being admitted to the United States as a nonimmigrant, does not satisfy the one-in-three foreign employment requirement for immigrant classification as a multinational manager or executive. To cure the interruption in employment, such a beneficiary would need an additional year of qualifying employment abroad before he or she could once again qualify.”

Id., p. 1  Although this decision relates directly to the immigrant visa category, some of the people who apply for the immigrant visa often start out with an L-1A nonimmigrant visa.

Matter of G- Inc., Adopted Decision 2017-05 (AAO Nov. 8, 2017)

Matter of G- Inc. clarifies that, to establish that a beneficiary will be employed in a managerial capacity as a “function manager,” the petitioner must demonstrate that: (1) the function is a clearly defined activity; (2) the function is “essential,” i.e., core to the organization; (3) the beneficiary will primarily manage, as opposed to perform, the function; (4) the beneficiary will act at a senior level within the organizational hierarchy or with respect to the function managed; and (5) the beneficiary will exercise discretion over the function’s day-to-day operations.”

 Id., p. 1  Although this decision relates directly to the immigrant visa category, the same principles apply to the nonimmigrant visa.  They both rely on the same definitions in determining the employment capacity of the beneficiary.

 Matter of I- Corp., Adopted Decision 2017-02 (AAO Apr. 12, 2017) involved an L1-B visa and held:

(1) U.S. Citizenship and Immigration Services (USCIS) cannot approve a visa petition that is based on an illegal or otherwise invalid employment agreement.

(2) To prevent a potential conflict with the Fair Labor Standards Act (FLSA), USCIS must ensure that a beneficiary will not be paid a wage that is less than the minimum required wage under state or Federal law, whichever is higher, before approving an employment-based visa petition.

Id., p. 2 of PM, Adopted Decision, p. 1 

Matter of I- Corp. clarifies that USCIS cannot approve a visa petition that is based on an illegal or otherwise invalid employment agreement. To prevent a potential conflict with the Fair Labor Standards Act, USCIS must ensure that a beneficiary will not be paid a wage that is less than the minimum required wage under state or Federal law, whichever is higher, before approving an employment-based visa petition.”

Id., p. 1 of PM

“Upon de novo review, we have identified an antecedent issue that must be further developed and resolved before evaluating whether the position requires, and the Beneficiary possesses, specialized knowledge. On the Form I-129, Petition for a Nonimmigrant Worker, the Petitioner indicated that it would employ the Beneficiary for a 2-year period at a total wage of “43,445 MYR per year.” When converted from Malaysian ringgits (MYR) to U.S. dollars, this proffered salary is the equivalent of $13,467.95 per year or $6.47 per hour.2 We are unable to approve an employment-based visa petition where the record indicates that a petitioner will not pay its beneficiary the minimum wage required by applicable labor law. We will remand this matter to the Director for further development of the record and entry of a new decision.”

Id., p. 3 of PM, Adopted Decision, p. 2   I have to wonder just how special the alleged specialized knowledge is if they didn’t even want to pay minimum wage!

Matter of Z-A-, Inc., Adopted Decision 2016-02 (AAO Apr. 14, 2016) deals with an L1-A petition and held:

(1) While an L-1A function manager may use his or her business expertise to perform some operational or administrative tasks, he or she primarily must manage an essential function.

(2) To determine whether a beneficiary’s job duties will be primarily managerial in nature, an adjudicating officer must consider the totality of the record and weigh all relevant factors, including: the nature and scope of the petitioner’s business; the petitioner’s organizational structure, staffing levels, and the beneficiary’s position within the petitioner’s organization; the scope of the beneficiary’s authority; the work performed by other staff within the petitioner’s organization, including whether those employees relieve the beneficiary from performing operational and administrative duties; and any other factors that will contribute to understanding a beneficiary’s actual duties and role in the business.

(3) When staffing levels are considered in determining whether an individual will act as a manager, an officer must also take into account relevant evidence in the record concerning the reasonable needs of the organization as a whole, including any related entities within the “qualifying organization,” giving consideration to the organization’s overall purpose and stage of development.

Id., p. 2 of PM, Adopted Decision, p. 1

 “The Director, California Service Center, denied the petition requesting an extension of the Beneficiary’s stay in L-1A status, finding the Petitioner failed to establish it would employ the Beneficiary in a managerial capacity, and certified her decision to the Administrative Appeals Office (AAO) for review. 8 C.F.R. § 103.4. We withdraw the Director’s initial decision and approve the petition.

Id., p. 3 of PM, Adopted Decision, p. 2 

Matter of IT Ascent, Inc. (September 2, 2005), Adopted Decision 06-0001 (AAO Sept. 2, 2005):

“Given that the term “period of authorized admission” upon which the AAO relies in Matter of IT Ascent, is also found in the L-1 nonimmigrant statute at INA § 214(c)(2)(D), I further direct that the reasoning in that decision be extended to the calculation of maximum periods of stay by L-1 nonimmigrants.

The spouse and minor child of a principal alien who recaptures H-1B or L-1 periods may receive periods of H-4 or L-2 stay coextensive with that of the principal alien.”

Id. p. 1 of PM

IV. Recent AAO L1-A New Office Non-Precedents posted as of writing.

In Re : 16402403, (AAO JUL152022_01D7101)

“The Petitioner, an automobile dealer and provider of vehicle repair services, seeks to continue employing the Beneficiary temporarily as its "Director" under the L-1 A nonimmigrant classification for intracompany transferees. 1 See Immigration and Nationality Act (the Act) section 101 (a) (15)(L), 8 U.S.C. § 1101(a)(15)(L). The L-IA classification allows a corporation or other legal entity (including its affiliate or subsidiary) to transfer a qualifying foreign employee to the United States to work temporarily in a managerial or executive capacity.

Although the petition was approved, upon further review and subsequent to a post adjudicative site visit, the Director of the Texas Service Center revoked the approval of the petition concluding that the Petitioner did not establish, as required, that the Beneficiary's proposed employment would be in a managerial or executive capacity. The Director also entered a separate finding of "fraud or willful misrepresentation of a material fact." The matter is now before us on appeal.

In these proceedings, it is the Petitioner's burden to establish eligibility for the requested benefit. See Section 291 of the Act, 8 U.S.C. § 1361. Upon de novo review, we conclude that the Director did not provide an adequate analysis to support a finding of fraud or misrepresentation. Therefore, we will remand the matter for further consideration and entry of a new decision.” p. 1

“In light of the deficiencies in the Director's decision specifically related to the fraud or willful misrepresentation claims, we hereby withdraw that decision and remand the matter for further consideration of the evidence and a new determination of the Petitioner's eligibility. If the Director determines that a finding of either fraud or willful misrepresentation is warranted, the Director shall issue a NOIR that (1) clearly identifies the finding and the party or parties against whom that finding is made, and (2) includes a detailed analysis highlighting the factors that may support that finding The NOIR must also include all other grounds for the intended revocation so that the Petitioner has an opportunity to address any intended adverse findings.” p.6

In Re: 5135278, (AAO JUL022021_01D7101)

“The Petitioner, an owner and operator of a retail grocery store, seeks to temporarily employ the Beneficiary as the general manager and chief executive officer (CEO) of its new office under the L-1A nonimmigrant classification for intracompany transferees. Immigration and Nationality Act (the Act) section 101(a)(15)(L), 8 U.S.C. § 1101(a)(15)(L).

The Director of the California Service Center, U.S. Citizenship and Immigration Services (USCIS), denied the petition, concluding there were inconsistencies in the record regarding the Petitioner's operations. Specifically, the Director questioned whether the Petitioner was a "New Establishment" eligible for classification as a new office since the petitioning entity, although newly incorporated, was the same grocery store that previously employed the Beneficiary under another L-1A new office petition. The Director also concluded that the Petitioner did not establish that it would employ the Beneficiary in a managerial or executive capacity within one year of an approval of the petition.

On appeal, the Petitioner asserts that the Beneficiary is eligible to again enter under a new office petition to establish the same new operation in the United States previously launched by an affiliated petitioner under a new office petition. The Petitioner contends it has provided sufficient evidence to establish that the Beneficiary would act in a managerial or executive capacity within one year.

Upon de novo review, we will dismiss the appeal.” p. 1

V. What can be gleaned from these Non-Precedents?

Although I did not include them above, the footnotes in the AAO Decisions are worth reading. Anyway, AAO concluded that in both cases, decided just about one year apart, that there were some similarities.  They both involved new office petitions. In both cases, AAO found that major errors had been made. In the earlier case involving the grocery store, it was the petitioner who made the mistake of thinking that a minor paper restructuring could transform a little grocery store into a new establishment that could take a second bite of the apple and get a second year as a new office for the same beneficiary. In the more recent case involving the car dealership and which included a site visit, it was the adjudicator who made the mistakes. The adjudicator failed to provide an adequate analysis to support a finding that, if substantiated, would render the beneficiary inadmissible unless granted a waiver and/or lead to the petitioner being barred from petitioning.

VI. Conclusion.

All of the preceding information and discussion helps set the stage for the crux of this article. What does one need in the L-1 new office business plan? There are some broad topics listed in the regulations found at 8 CFR § 214.2(l)(3)(v)(C)(1-3).

Specifically, the BP and associated exhibits must demonstrate:

(C) The intended United States operation, within one year of the approval of the petition, will support an executive or managerial position as defined in paragraphs (l)(1)(ii) (B) or (C) of this section, supported by information regarding:

(1) The proposed nature of the office describing the scope of the entity, its organizational structure, and its financial goals;

(2) The size of the United States investment and the financial ability of the foreign entity to remunerate the beneficiary and to commence doing business in the United States; and

(3) The organizational structure of the foreign entity.

(vi) If the petition indicates that the beneficiary is coming to the United States in a specialized knowledge capacity to open or to be employed in a new office, the petitioner shall submit evidence that:

(A) Sufficient physical premises to house the new office have been secured;

(B) The business entity in the United States is or will be a qualifying organization as defined in paragraph (l)(1)(ii)(G) of this section; and

(C) The petitioner has the financial ability to remunerate the beneficiary and to commence doing business in the United States.

There does not appear to be a precedent or adopted decision about L-1 BPs but there is an EB-5 precedent about BPs. Matter of Ho, 22 I&N Dec. 206 (Assoc. Comm. 1998) provides guidance about what the agency expects to see in a comprehensive business plan.  AAO discussed the contents of a business plan in the context of an EB-5 entrepreneur coming to the United States to start a new business. The same basic components will serve the same purpose for an executive, manager or employee with specialized knowledge who is coming to the United States to open a new office for the existing business who is the petitioner that filed the I-129, Petition for a Nonimmigrant Worker.

The L Classification Supplement to Form I-129 begins on page 22 of the pdf at the form linked above.  The form and supplement concentrate on many specifics about the petitioning employer and the beneficiary.  The business plan would be part of the supporting documentary evidence submitted in order to convince the USCIS adjudicator to grant the requested visa.  The supporting evidence could include a well written brief or support letter written by the immigration attorney handling the case.  The supporting evidence might be produced by someone directly employed by the petitioning employer. However, even if some of the above is helpful and useful, the L-1 “New Office” supporting evidence goes beyond the norm. Only a really big company, corporation or multinational conglomerate would have a specialist capable of writing a solid business plan in support of this type of benefit request. Any other and slightly smaller petitioning company will need to hire a professional technical writer to compose a winning comprehensive business plan.  The AAO gave the best written description of what the adjudicator should look for in a BP and what to consider in the adjudication, here is that discussion from Matter of Ho:

“....To be “comprehensive,” a business plan must be sufficiently detailed to permit the Service to draw reasonable inferences about the job-creation potential. Mere conclusory assertions do not enable the Service to determine whether the job-creation projections are any more reliable than hopeful speculation.

A comprehensive business plan as contemplated by the regulations should contain, at a minimum, a description of the business, its products and/or services, and its objectives. The plan should contain a market analysis, including the names of competing businesses and their relative strengths and weaknesses, a comparison of the competition’s products and pricing structures, and a description of the target market/prospective customers of the new commercial enterprise. The plan should list the required permits and licenses obtained. If applicable, it should describe the manufacturing or production process, the materials required, and the supply sources. The plan should detail any contracts executed for the supply of materials and/or the distribution of products. It should discuss the marketing strategy of the business, including pricing, advertising, and servicing. The plan should set forth the business’s organizational structure and its personnel’s experience. It should explain the business’s staffing requirements and contain a timetable for hiring, as well as job descriptions for all positions. It should contain sales, cost, and income projections and detail the bases therefor.4 Most importantly, the business plan must be credible.

Certainly no astute investor would place half a million or a million dollars into a business that he had not thoroughly researched. Creating a comprehensive business plan as described above is normal practice for any businessman seeking to operate a viable business. Without knowing whether a business is feasible and has the potential for long-term survival, neither the petitioner nor the Service can reasonably conclude that it will create permanent, full-time employment. It is not too onerous to ask a petitioner who has not yet met the employment-creation requirement to submit to the Service a real business plan. Other administrative agencies, such as the Small Business Administration, and private financial institutions routinely require the submission of detailed business plans before extending loans to businesses. Permanent resident status is no less significant a matter than a loan.

The petitioner’s four-page “business plan” is wholly inadequate and fails to meet the petitioner’s burden of showing that he will create 10 permanent, full-time positions within the next two years.”

_____________

4 The Service recognizes that each business is different and will require different information in its business plan. These guidelines, therefore, are not all-inclusive.

Id. at p. 813.  [Emphasis added.]  AAO clearly indicated what the agency expects to see in a comprehensive business plan for any new business attempting to make a go of it in the United States market.  They want to see that the petitioning employer and the beneficiary have the necessary knowledge, skills, and abilities to expand an existing business and contribute to the economy through, for example, job creation, and when successful, increased revenues for the local, state, and federal government through an increased tax base.  What did Democratic strategist James Carville say way back during the Bill Clinton presidency?  “It’s the economy, stupid!”  And what did Cuba Gooding, Jr. 's character say in the movie ‘Jerry Maguire’? “Show me the money!” I think that is still true today. Don’t you? After all, it’s just business as usual to try to succeed and the proof is in the profits and the bottom line.

That’s My Two-Cents, For Now!

[1] See: https://www.justice.gov/sites/default/files/eoir/legacy/2012/08/27/2110.pdf

[2] See: https://uscode.house.gov/browse/prelim@title8/chapter12&edition=prelim 

[3] Relates to blanket petitions and time limits on initial stays and extensions,


About The Author


Joseph P. Whalen is an independent EB-5 consultant, advocate, trainer and advisor.


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