Upstart L-1 Strategies

You've all heard the buzz about the move in Washington to reform the L-1 visa category. Notwithstanding all that's being considered and the fact that a number of companies are, indeed, abusing the L-1B category to the detriment of U.S. workers by essentially using it as a pseudo-H-1B, the category remains one of the most useful and viable tools for legitimate overseas businessmen/women seeking to open U.S. divisional offices. For smaller enterprises which are not "multi-national" in nature and who really need to set up shop in the U.S., the L-1A remains the visa category of choice for a number of reasons:

• It is mean, lean, without set minimum investment requirements.
• It allows prompt transition (via premium processing) for the principal alien, spouse, and minor children to the U.S.
• It allows the set up of a small office from which U.S. business activities can be affordably deployed for the U.S. venture.

I get a lot of Latin American and European investors knocking on my door (i.e. ringing my phone) with rather major plans for the United States. If they are very significant players, more often than not they plan on coming in and doing things in a really big way. Being the cheapskate that I tend to be with OPM (Other People's Money), I generally advise them to lay off taking over the country for the moment at least and set up a simple L-1 scenario even in an office suite situation if that's appropriate. I'll give you some examples:

• A Colombian manufacturing firm which has such an ongoing need for spare parts purchased in Miami that it decided to set up a full-time purchasing office with one employee and a couple of part-time local hires, since that will be cheaper than continuing to pay a purchasing agent in Miami.

• A South American hotel which has had limited success in marketing to South Florida tourists is considering opening a full-time marketing office with one family member running it, cultivating relationships with various South Florida travel agencies catering to the ever-curious German travel market.

• An Argentine communications guru wishing to launch yet another venture in the U.S. decides to send his key man up from Buenos Aires to "test the waters" before committing to a full-fledged, large-scale launch in the U.S.

In all of these scenarios, the L-1A, be it for an Executive or a Manager, is the perfect way to proceed. The setting up of a small office consisting of essentially a laptop, fax machine, and the necessary infrastructural support equipment is the primary launching point. Subleasing space from an existing corporation owned by a friend or related business is perfectly acceptable to the BCIS and helps keep costs down. Home office situations are also perfectly legitimate, but I am chicken about that and hate to do it, though I have. I always just feel guilty about it because of the statutory language using the term "place of business." Most of my peers believe that with the propensity of home-based business operations, it's completely cool to do that. I still don't think many BCIS officers would agree, so I am reluctant to do so.

In preparing these L-1As, I am extremely conservative in the business plan presented to the BCIS. Unlike many of the attorneys whom I see filing all kinds of nonsense, talking about ten employees by the end of the year, I am very up front when I tell the BCIS what the plan is, what the objectives are, and I'll even go as far as telling them that the company doesn't plan on hiring "employees" if independent contractors are better for the job.

For example, I have had a number of situations where I have had clients who owned commercial real estate properties where all of the services -- maintenance, security, painting, janitorial, etc. -- were handled 100 percent by independent contractors rather than W-2 employees; I provided accountant letters to show the INS that it was an intelligent and cost-effective way for the company to do so. In both E-2 and L-1 cases, the fact that the investor has not had "employees" in the conventional sense of the word has not been a detriment to case approval or renewal.

Anyway, there you have it -- my opinion on the L-1A. Remember this: since we cranked this law firm up in 1990, there hasn't been an Inter-company Transferee we have been unable to get approved. And if you happen to be the first one, we'll tell you so before we take your money. If you have any questions, e-mail This e-mail address is being protected from spam bots, you need JavaScript enabled to view it with the subject line "Question About Jose's L-1 Visa Suggestions," and we'll be sure to help you if we can.

There Is No "Grace Period"

Kim, Kirsten, Lorenzo, and I did one of our big presentations in front of a key client a couple of weeks ago, and one of the Great Immigration Questions came up yet again, so I thought it was important to bring this up to you guys since we haven't discussed this here in quite some time. The question was this:

What kind of "grace period" is there after you get terminated by your employer or your petition for extension or change of status is denied by the BCIS?

The answer is quite simply this: Nothing in the statutes or in any judicial decision grants any form of "grace period" to an individual who has been denied an immigration benefit. The only form of "grace period" which can ever be provided by the government to such individual is one afforded by an Immigration Judge in U.S. Immigration Court. That means that unless you are in asylum, deportation, or such other type of legal proceeding within Immigration Court, you cannot be under any form of "grace period."

This means the following: Theoretically, the moment you are terminated by an employer, the moment that you get a notice of denial from the BCIS, or the moment that anything happens which terminates your current status as a non-immigrant, you are required to leave the United States right away.

Now... having said all of that... here's the way it really works.

Normally, if you have a reasonable adjudicator at the BCIS, there is an assumption that if you depart within a 10 day period, you will generally not be harassed about having stayed that long. Where did the 10 day "non-rule" come from? It's based upon the consular authority to issue a visa for the period of BCIS petition approval plus up to 10 days. For example, if you have a visa which has been adjudicated and approved through March 10, the Consul has the right to stamp that visa through March 20. Very few consular officers are aware of that rule, but that is the basis for the logic. It is very difficult to find an airport entry officer rough and tough enough to really harass you for having overstayed 10 days if you are in the United States under a student or worker visa, but it can happen.

Note: Students have special rules regarding visa overstay. Here they are in a nutshell, but make SURE that you consult with the International Student Services office at your school if you have any questions about your specific situation.

"Visa Overstay" for students occurs in the following situations:

• A student has failed to complete a program of study and has allowed his/her I-20 to expire.
• A student interrupts/discontinues a program of study and fails to depart the U.S. immediately (break periods and summer vacation are not considered to be an interruption of studies).
• A student has allowed the 60-day grace period following graduation to expire without having received a new I-20 to begin a new program of study or having submitted a new application to the BCIS for Optional Practical Training (OPT) or a change of status.

[See our F-1 Student Information section of usvisanews.com for further student visa information and tips: http://www.usvisanews.com/f1info.shtml]

Of course, the safest thing you can do is to never overstay your status by a single day, completely preempting the need for exploring this issue!

Coming up, I have got quite a bit of travel in September, and I am not sure how timely my Port of Entry submissions will be, so I am warning you in advance. I am off to the Czech Republic to help some folks with an investor visa. After that, I am going to be a speaker at the National Summit on Cuba -- absolutely the coolest speaking gig of my life! I'll tell you more about that as the date gets closer.

Be well, all of you, and I hope that your summer is winding up nicely and that you are enjoying some warm, sunny weather.

- Jose