Why Can't a US Branch Of a Foreign Company Sponsor an Intracompany Transferee For a Green Card?
by Cyrus Mehta
The title of this article may come as a surprise to foreign companies since a US branch of a foreign entity is authorized to sponsor an intracompany executive or manager for an L-1A nonimmigrant visa. But when the same branch wishes to sponsor the individual for permanent residency through an I-140 immigrant visa petition, the USCIS Adjudicator’s Field Manual (USCIS AFM) says “No.”
Although the USCIS AFM does not have the same force of law as the Immigration and Nationality Act or a properly promulgated regulation under the Administrative Procedure Act, a USCIS officer will nevertheless adhere to the AFM even though it may be inconsistent with the INA. This is what is stated in USCIS AFM Chapter 22(3)(B) regarding Branch Offices, http://1.usa.gov/khrIiH:
3) Branch Offices :
(C) Certain multinational executives and managers. – An alien is described in this subparagraph if the alien, in the 3 years preceding the time of the alien’s application for classification and admission into the United States under this subparagraph, has been employed for at least 1 year by a firm or corporation or other legal entity or an affiliate or subsidiary thereof and the alien 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.
§ 203(b)(1)(C) is thus quite clear. It allows the foreign national executive or manager “to continue to render services to the same employer” or to its subsidiary or affiliate in the US. The reference in § 203(b)(1)(C) relating to “rendering services to the same employer” implies that the US branch of a foreign entity can also act as a sponsor for a green card for an intracompany manager or executive.
Although the formation of a separate entity that insulates its shareholders from liability, such as a subsidiary, may be the desired form to do business, a branch is also a legitimate vehicle for a foreign company to conduct business in the US, http://www.cyrusmehta.com/Cyrus_Buss_usa.aspx. It must also seek the necessary permission to obtain authorization to do business in a state by filing an appropriate application, and the requirements for doing so in New York can be found here, http://bit.ly/lMAxhX. An authorized branch of a foreign company will also place the company within the jurisdiction of the United States courts and the state courts, in which the office is located and where business is conducted. The profits of the foreign entity earned through the branch will also be subject to US taxation. Finally, a branch may also apply for a Federal Employer Identification Number so that it can hire employees and report their income to Uncle Sam.
To further support its erroneous position, the USCIS AFM relies on Matter of Thornhill, 18 I&N Dec. 34 (Comm. 1981), which is misplaced. Matter of Thornhill involved a sponsor of an immigrant visa petition who was himself a nonimmigrant on an H visa. Since a nonimmigrant H visa holder under the prior statute was required to establish a residence in a foreign country for which he or she had no intention of abandoning, the petitioner was not considered competent to create a job for employment for another alien on a permanent basis.
But, unlike the nonimmigrant petition in Matter of Thornhill, a branch of a foreign company can continue to do business in the state on a permanent basis so long as it is authorized to do so under the relevant state law. Of course, a branch can go out of business, if the foreign parent does, but the same applies to an entity, such as the subsidiary of the foreign entity, incorporated in the US.
Thus the prohibition of a branch to file an I-140 petition for a multinational manager or executive can be challenged as being inconsistent with INA §203(b)(1)(C). It is also inconsistent with the fact that the same branch can readily sponsor the same individual for an L visa. Moreover, there appears to be no specific prohibition in the USCIS AFM for a branch to sponsor a foreign employee for a green card through a labor certification under the Employment-based Second and Third Preferences pursuant to INA §§ 203(b)(2) and (3) respectively. Indeed, the definition of an employer under the labor certification regulation at 20 CFR § 656.3 includes “[a] person, association, firm, or a corporation that currently has a location within the United States to which U.S. workers may be referred for employment and that proposes to employ a full-time employee at a place within the United States, or the authorized representative of such a person, association, firm or corporation. An employer must possess a valid Federal Employer Identification Number (FEIN).” This definition seems to include a branch, which may file a labor certification on behalf of a foreign worker so long as it has obtained a FEIN, and once the labor certification is approved, this same branch can go on and file an I-140 immigrant visa petition pursuant to §§ 203(b)(2) and (3). So, why should this branch be precluded from filing an I-140 for an intra company multinational manager or executive?
USCIS’s impediment on a branch to sponsor an intracompany executive or manager for permanent residence unnecessarily restricts a foreign company’s ability to do business in the US on a long term basis, and ought to be eliminated.
This article was originally published on www.cyrusmehta.blogspot.com on 03/11/2011.
Cyrus Mehta is a graduate of Cambridge University and Columbia Law School, is the Managing Member of Cyrus D. Mehta & Associates, PLLC in New York City. Mr. Mehta is the Chair of the AILA’s National Pro Bono Committee. He is a former Chairman of the Board of Trustees of the American Immigration Law Foundation (2004-2006). He was also the Secretary and member of the Executive Committee (2003-2007) and the Chair of the Committee on Immigration and Nationality Law (2000-2003) of the New York City Bar. He is a frequent speaker and writer on various immigration-related issues, and is also an Adjunct Associate Professor of Law at Brooklyn Law School, where he teaches a course entitled “Immigration and Work.” All opinions expressed herein are the personal views of Cyrus D. Mehta and do not represent those of the organizations he has been part of in the past and presently.
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