November 29, 2021

Volume XI, Number 333

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November 29, 2021

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USCIS Adopts AAO Decision Clarifying Foreign Entity Requirement in Multinational Manager/Executive Immigrant Petitions

On May 13, 2020, United States Citizenship and Immigration Services (USCIS) announced the adoption of a May 5, 2020, Administrative Appeals Office (AAO) decision, Matter of F-M- Co., making it formal policy guidance for the adjudication of similar future cases.

Matter of F-M- Co. addresses the employment-based immigrant first preference multinational executive or manager classification and clarifies two key points about the interpretation of applicable criteria. Per the Immigration and Nationality Act section 203(b)(1)(C), 8 U.S.C. § 1153(b)(1)(C), a multinational executive or manager is one who “seeks to enter the United States in order to continue to render services to the same employer or to a subsidiary or affiliate thereof in a capacity that is managerial or executive.”

Firstly, in Matter of F-M- Co., the AAO reaffirmed USCIS’ longstanding interpretation of the rule requiring that the relationship between the foreign entity and the U.S. petitioner must exist at the time of filing the petition and throughout the pendency of the case; the relationship must exist for the beneficiary to be able to “continue to render services” to the same or related employer. This finding is also in line with the benchmark requirement for immigration petitions at 8 C.F.R. § 103.2(b)(1), that eligibility for the benefit sought must exist at the time of filing and throughout the adjudication of the case.

Secondly, the AAO offered some leniency for petitioners in concluding that while the foreign entity must continue to exist and do business, it does not need to be “in the exact legal form” in which it operated as when the beneficiary was employed. The AAO determined that in the event of a corporate reorganization, a successor-in-interest relationship between the former foreign entity and a new one could be sufficient to meet the requirements of the regulations. The petitioner must show that “the beneficiary’s qualifying foreign employer continues to exist and do business through a valid successor entity.” Relevant factors for successor-in-interest determinations include the transfer of rights, duties, obligations, and ownership of the prior entity.

Although such arguments could have been successful in the past to show that the foreign entity exists through a successor-in-interest, it was up to the discretion of the adjudicator. Now, with the adoption of Matter of F-M- Co. as USCIS policy guidance, employers in such circumstances may be better situated with more regularity in future cases.

©2021 Greenberg Traurig, LLP. All rights reserved. National Law Review, Volume X, Number 137
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About this Author

Associate

Sarah E. Amendola is an associate in the Immigration & Compliance Practice in Greenberg Traurig’s Northern Virginia office. She gathers evidence and drafts support letters and petitions for immigrant/non-immigrant visa cases including L-1, H-1B, H-3, E-1, E-2, B-1, O-1, P-1, EB-1, and EB-5 visas. She also drafts motions and briefs for the Department of Labor and the Department of Homeland Security involving immigration matters, including responses to requests for evidence (RFEs).

703-749-1327
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