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Winning a Motion to Re Open for a New Office L1A Case!

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In recent months, the L-1A visa has been under attack by Immigration. More Requests for Evidence and more denials have been forthcoming on L-1 visas than have been issued in the past. Such issues that have arisen recently include the adequacy of the employer's office space, the nature of the business itself, and even ownership concerns. What is more vexing is when Immigration sends a Request for Evidence asking for more evidence, providing the evidence asked for, and then receiving a rejection notice on a totally unrelated issue that was never raised in the Request for Evidence. Andrew Despositio, Esq. from our office with our team won an amazing motion to re open on a difficult L1A case denial.

Recently, our office submitted an L-1 petition on behalf of a company with a newly founded subsidiary in the U.S. The subsidiary is in the business of marketing the hearing and eye protection that is manufactured and distributed by the parent company in the foreign country. The subsidiary established that it had a legitimate need for an employee from the parent company to act as an executive/manager under the L-1A visa.

Once the case was submitted, a Request for Evidence came back asking to substantiate the business premises, the parent company's premises, a feasibility study of the subsidiary's business made by the parent company, insurance statements from the subsidiary, bank statements from the subsidiary, and a lease agreement from the subsidiary. All of these documents were provided to immigration to fulfill each request it made. In the end the case was still denied.

The denial was puzzling because if everything immigration requested was given to them, then why would the case still be denied? The immigration officer raised an issue that was not brought up in the Request for Evidence. The immigration officer raised the issue of ownership, primarily that because our beneficiary was also the majority owner of the parent company, there should be more evidence to show the ties to the beneficiary's home country are such that he will return at the end of the visa term. The immigration officer cited 8 C.F.R. 214.2(l)(3)(vii) which requires that a majority stockholder of a company provide more evidence that the services will be temporary and the assignment abroad is temporary.

The immigration officer next cited Matter of Isovic, 18 I. & N. Dec. 361 (Comm. 1980) as controlling in our case. If the facts of this case were applied to our case exactly, it would have been correct to cite this case because it stands for the premise that a majority stockholder must provide greater evidence to prove the temporariness of the beneficiary's transfer. However, the facts of the case made note of the procedure that was taken by immigration and the response to that procedure by the petitioner.

The facts in Matter of Isovic show that the petitioner was specifically asked in a Request for Evidence for further documentation demonstrating the temporary nature of the beneficiary's stay in the U.S., that the petitioner failed to provide such documentation, and therefore the immigration officer was correct in denying the petitioner the L visa for its beneficiary.

Unlike Matter of Isovic, our client did provide evidence that he has ties to his home country such that his transfer to the U.S. would be temporary. The matter was never raised in the Request for Evidence by immigration, yet when they denied the visa it was the sole reason for denial. It made sense that after all that time and money was spent to submit the L-1A petition, a Motion to Reopen/Reconsider was the next logical step in the process.

The Motion to Reconsider approach was simple. First, address the elements of what qualifies for an L-1A visa. Second, reestablish the elements that have already been met based on the record submitted. Third, address the issue that was raised in the denial and attack the issue. Our response reestablished the elements without any question, leaving only the issue raised in the denial.

We focused on the application of the facts in the Matter of Isovic and distinguished our client from this case in one key aspect: the Request for Evidence. Where in Matter of Isovic the petitioner was required to furnish evidence of the temporariness of its beneficiary, our client was never asked in the Request for Evidence. We distinguished our case through the evidence we already provided in the record and how if there was any question on that issue, that it would have been raised in the Request for Evidence.

We pointed out how the officer must have ignored other documents that were submitted in the case. Next, we raised INA 214(b) on the presumption of status and reinforced that there is no presumption of immigrating to the U.S. for a person filing under the L-1A visa, which is a factor in favor of our client's temporary stay in the U.S.
We then provided our strongest argument by focusing on the Request for Evidence procedure. Citing 8 C.F.R. 103.2(b)(8)(iii) and 8 C.F.R. 103.2(b)(8)(iv), we contended that in furnishing a Request for Evidence, the process of sending a request for evidence was to "specify the type of evidence required, and whether the initial evidence or additional evidence is required."

If the temporary stay of the beneficiary was truly at issue, the Request for Evidence would have asked for more evidence to establish such temporariness. The case of Shanti, Inc. v. Reno, 36 F.Supp.2d 1151 (D Minn. 1999) stands for the premise that "it may be an abuse of discretion when the INS fails to follow its own regulations, or where an INS decision is inconsistent with the agency's own precedent." Immigration relies on the Code of Federal Regulations in the determination of all of its procedures. The only logical conclusion in this matter is that it would be an abuse of Immigration discretion to uphold the denial of our client's L-1A visa by relying on an issue that was never raised in the Request for Evidence.

In the end, the Motion to Reopen/Reconsider was approved and our client was granted his L-1A visa. The turnover time from the time the motion was filed to the final decision was only two weeks. It goes to show that with a little research and a carefully crafted argument, the denial of an L-1A visa can be overturned. When appealing any decision by immigration, attacking the decision on the grounds of an incomplete Request for Evidence is just one way to bring about a favorable decision on an issue that was never made an issue in initial filing of the case.

Any immigration attorney would do well to keep this strategy in mind when mounting an attack on a bad decision. Feel free to email us with any questions.

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