Challenges while seeking Extension of Stay on a New Office L-1:
The New Office L-1 is generally granted for an initial period of one year in order
to enable the foreign national Executive or Manager to come to the U.S. and establish
operations. To seek an extension of stay beyond the first year while on the New
Office L-1, the Executive or Manager must show that during the first year the operations
in the U.S. the entity had grown sufficiently to a level that justified the continued
presence of the foreign national Executive or Manager, to discharge Executive or
Managerial functions in the U.S.
One year is not 12 months!
While theoretically the New Office L-1 provides a foreign national Executive or
Manager one year to come to the U.S, as a practical matter, an Executive or Manager
may find that the time actually available to him to accomplish all that required
is considerably less than one year. This is due to many factors. Once the petition
is approved, the Executive must obtain an L-1 visa at an American Consulate or Embassy
to be able to travel to the U.S. and seek admission on the L-1 visa. The Executive
or Manager must then travel to the U.S. and start building the operations. Then,
in order to remain in the U.S. to continue to build the business, the necessary
extension petition must be filed at least a few months before the period of one
year granted comes to an end. All this and more mean that the Executive or Manager
has considerably less than one year to accomplish the task of growing operations
to a level that justifies his continued presence and enable him or her continue
to remain in the U.S. to manage U.S. operations.
To facilitate an extension of stay of T-US’s CEO on the New Office L-1 beyond the
initial period of one year, VisaPro helped T-US successfully prepare and file a
comprehensive extension petition on his behalf, articulating how T-US’s operations
have become active and have reached a stage that justified his continued presence
in the U.S. to manage and guide the U.S. operations.
Denial of the L-1 Visa by the U.S. Consulate and USCIS’s Issuance of a Notice of
Intent to Revoke
After the approval of the extension petition that facilitated T-US’s CEO to continue
working in the US, he planned a brief trip to India. As the initial New Office L-1
visa granted to him had expired, he needed to apply for a new visa supported by
the extension petition approved by the USCIS to enable him travel back to the US
and resume work in the U.S.
A visa interview at the consulate may not often go as planned, notwithstanding a
prior USCIS approved petition supporting the applicant’s case. Sometimes the U.S.
Consulate may deny the application because they do not feel the petition should
have been approved. Sometimes, due to an applicant’s natural anxiety and stress
that such interviews can create, the applicant may be unable to clearly articulate
his or her qualifications for the visa type applied for. Something similar happened
in this case. During the visa interview, the Consular Officer decided that the applicant
(T-US’s CEO) would not actually be functioning in an Executive capacity in the U.S.
and refused to issue him a visa.
After refusing to issue an L-1 visa to T-US’s CEO, the Consulate returned the petition
to USCIS for review and revocation. Based on the Consular official’s reference,
USCIS issued T-US a ”Notice of Intent to Revoke” (NOIR) citing the consular officer’s
concerns and requesting additional evidence from T-US to demonstrate that the beneficiary
indeed qualified for a position that was Executive in character.
The end result of all these developments meant that T-US’s CEO was stranded in India
after what was supposed to be a brief trip and unable to return to the U.S. to effectively
manage the U.S. operations.
Successful Response Strategy and Overcoming a Consular Denial
When T-US received USCIS’s NOIR, VisaPro’s attorney’s thoroughly reviewed the situation.
After considering all the materials on hand, VisaPro’s experienced attorneys recommended
that re-fling the L-1 petition would be more advantageous over responding to the
NOIR.
VisaPro’s attorneys worked closely with T-US to help thoroughly document how the
beneficiary’s role was executive in nature, and to prepare and file a new petition
seeking T-India’s CEO’s presence in the U.S. Keeping in mind the previous objections
raised by USCIS in the NOIR, the package addressed every concern or query that the
authorities had raised and traversed beyond the normal parameters to effectively
establish how the CEO’s role in the U.S. could not be anything else but Executive
in nature. The extensive package submitted by VisaPro resulted in the approval of
the L-1 petition for notwithstanding the earlier revocation.
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