Tuesday, October 20, 2009

To "L" in a Handbasket

A formidable number of weak L-1A visas were filed in Venezuela in the past decade, and it is small wonder the U.S. Nonimmigrant Visa team in Caracas casts a wary eye upon Intracompany Visa applications involving:



  • a new U.S. enterprise with low job creation numbers

  • a comparatively small Venezuelan parent/affiliate

  • an entrepreneurial principal eager to see what he or she can do in the world's largest economy


To be blunt, the fraud was epidemic in the late 90's, and the only reason the situation has somewhat quelled is because most attorneys have come to belive that, with the above fact pattern, the consulate would likely deny the visa, notwithstanding the approved I-797.  (Not so, but more on that later.)


For me, this situation once again became a timely topic when we recently visited Caracas to discuss the E-5 Regional Center option with prospective Venezuelan clients.  As I mentioned in earlier posts, interest was strong -- how much of it was curiousity and how much was actual immigration planning remains to be seen.  But judging from the continuing buzz and follow ups, we certainly were not wasting our time there.  One recurring question, however, presented itself time and again:


"If I am ready to go to the U.S. now but the EB-5 approval will take close to a year, what can I do ?"


The answer to this question, of course, lies squarely in structuring of an appropriate non-immigrant visa.   But there are problems:



    -Venezuela does not have a treaty of trade and commerce with the U.S., so the very useful E-1 and E-2 visas are not an option.


    -Student visas, even for language studies, are subject to the Section 214(b) provisions requiring nonimmigrant intent...tough to prove when you have a pending EB-5 Immigrant Investor petition.

And so, we go back to the old reliable, 214(b)-free L-1 and H-1B (i.e., neither is subject to the applicant proving non-immigrant intent)...but they too have their problems:



-the H-1Bs remaining are flying the coop quickly and with a recovering economy, who says the 65,000 visas won't disappear on that next April Fools morning, as has been the norm till this past year?


-the L-1 abuse has left our legitimate small-company L-1 prospects in Venezuela wary and fearful of consular denials after getting their USCIS petition approved.


So here's what we are doing:  we are filing those small-company L-1s armed to the TEETH with bona fide evidence of legitimate business activity both in the U.S. and abroad, pre-empting the line of inquiry with powerful proof of the legitimacy of the enterprises...large OR small.  And we are getting them approved.


Sometimes showing the consular officer the Big Picture is all it takes...revolutionary!!



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