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United States Citizenship and Immigration Services (USCIS) released an updated rule recently, clarifying the criteria for certain intra-company transferee L1 visa petitions. Where there are proxy votes employers must now meet additional requirements to show that the US company and the foreign enterprise meets the L1 visa criteria.
Sanwar Ali workpermit.com comment:
This US L1 visa change probably will not affect that many L1 visa applications. It is only in cases where there are proxy votes. If proxy votes are a determining factor in showing control then control of the business relating to the proxy vote should not change from the time that the L1 petition is filed and for the duration of the L1 visa. It is therefore for most companies not a major change.
More significant is that under Donald Trump L1 visas have come under greater scruitiny. It has become even more difficult than before to obtain an L1 visa.
The L1 visa is in many cases the only long term work visa available for US companies to employ overseas workers in the US. The H1B visa quota means that there are not enough H1B visas. There is a similar or worse situation for H2B visas. E2 visas and E1 visas are only available in limited circumstances for certain nationalities.
At the time of filing an L1 visa petition, employers are required to provide evidence that the US and foreign enterprises are in fact, the same employer. For example, a US business with a branch office in another country, or organisations that are connected as affiliate companies or as a parent and subsidiary.
L1 visa qualification criteria
It’s understood that USCIS officials will assess the ownership and control of a business to determine if there is a connection between a US and foreign enterprise that makes them eligible for an L1 visa.
This will involve inquiries into the legal right of possession and the right and power to direct operations of a business. For certain L1 visa petitions, these two aspects are likely to be determined using proxy votes.
Documents submitted as part of an L1 visa petition must prove that, at the time an application is filed, up to the time USCIS process the petition, equity holders in the business permanently sanctioned the transfer of their equity to another holder, who then takes legal control over the company or companies.
The type of documentation required will typically include legally binding proxy agreements, organizational documents of an enterprise, a sworn statement from the equity holder sanctioning the proxy, minutes of meetings outlining how a decision on a binding proxy agreement was reached, and the legal framework under which the proxy was approved.
Burden of proof rests on L1 visa petitioners
The responsibility for proving the validity of a relationship between a US and overseas company for the intra-company transfer of a foreign employee, is with the L1 visa petitioner. USCIS officers will determine the eligibility of the petition, so the evidence supplied must be credible and sufficient.
Under previous US L1 visa rules, equity holders in a business were given the right to reverse a proxy agreement at any time, except in cases where it was made explicitly irrevocable. This would often depend on the authority of the governing entity and the sale of an equity holder’s stake in the business.
Should an L1 visa petitioner fail to provide proof of compulsory common ownership and control, or establish a valid connection between a US and foreign company, then the USCIS adjudicates the petition.
Amended L1 visa petitions can be submitted in the case of a change of ownership or control of a business, following an adjudication process. Adjusted petitions must be filed in accordance with the updated regulations now in force for irrevocable proxy votes.
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