Chapter 8 - Documentation and Evidence

Eligibility at Time of Filing

USCIS regulations affirmatively require a petitioner to establish eligibility for the benefit sought at the time the petitioner files the petition.^[1] A petition may not be approved based on speculation of future eligibility or after the petitioner or beneficiary becomes eligible under a new set of facts.^[2]

Named Beneficiary

The petitioner must name the beneficiary of an L-1 petition on the petition.

Multiple Beneficiaries on a Petition Not Permitted

A petitioner may not file for multiple beneficiaries on an L-1 petition. USCIS permits only one beneficiary on an L-1 petition.

Signature

An authorized signatory of the petitioner must sign the petition.^[3] USCIS may deny an L-1 petition for failing to establish eligibility for the benefit sought if the petition was accepted as signed, but it was not signed by an authorized signatory.

Burden of Proof^[4]

It is the petitioner’s burden to provide the documentation required to establish eligibility for L classification. The regulations do not require submission of extensive evidence of business relationships or of the beneficiary’s prior and proposed employment. In some cases, completion of the items on the petition and supplementary explanations by an authorized official of the petitioning company may be sufficient. In doubtful or marginal cases, officers may require other appropriate evidence which they deem necessary to establish eligibility in a particular case.

Amended Petition

An amended petition requires the same base filing fee, if applicable, as a new petition. USCIS may not require certain additional fees. Because the amended petition supplements the original petition, USCIS does not require duplicate documents submitted with the original filing. However, a petitioner must provide evidence addressing the change that led to the filing of the amended petition. Changes requiring amended petitions include:

• Changes in approved relationships;

• Additional qualifying organizations under a blanket petition;

• Change in capacity of employment (for example, from specialized knowledge position to a managerial or executive position); or

• Any information that would affect the beneficiary’s eligibility under INA 101(a)(15)(L).^[5]

A. Evidence for Beneficiary (Non-New Office)

When seeking L-1 classification on behalf of a beneficiary, the petitioner must submit the following:

• Evidence that the petitioner is a qualifying organization. If the petitioner is included on an L-1 blanket approval, then the petitioner must submit evidence that the approved blanket petition included this evidence and meets this requirement. If there is no L-1 blanket approval, the petitioner must provide the following evidence to demonstrate that it is a qualifying organization:

  • Evidence that the petitioner is a U.S. or foreign firm, corporation, or other legal entity;

  • Evidence that the petitioner is a parent, branch, affiliate, or subsidiary;

  • Evidence that the petitioner is doing business as an employer in the United States and at least one other country directly or through a parent, branch, affiliate, or subsidiary and will be doing such business for the duration of the beneficiary’s stay in the United States as an L-1 nonimmigrant;

  • Evidence that the beneficiary’s prospective L-1 employment in the United States will be primarily in a managerial or executive capacity, or will involve specialized knowledge; and

  • Evidence that the beneficiary was employed abroad by the petitioner, or its parent, branch, affiliate, or subsidiary, on a full-time basis for at least 1 of the last 3 years in a managerial, executive, or specialized knowledge capacity.^[6] The company does not have to transfer the beneficiary to the United States in the same capacity in which the beneficiary was employed abroad. For example, a company may transfer a manager abroad to the United States as an L-1 beneficiary to work in a position that primarily involves specialized knowledge.^[7]

Evidence of Doing Business

Primary documentary evidence of an organization’s business activities includes, but is not limited to:

• Annual reports, containing audited or reviewed financial statements;

• Audited financial statements;

• Reviewed financial statements; and

• Federal tax returns.

However, the petitioner may submit a variety of documents to establish that the U.S. and foreign organizations are doing business. For example, a petitioner may submit a letter that describes the nature and level of business activity conducted by the organization. If requesting a beneficiary to perform duties that are primarily managerial or executive in nature, the petitioner may provide a statement that clearly describes the organization’s manner of doing business, such as:

• The business activities in which the employing organization engages.

• How the beneficiary’s position is, or was, related to the organization’s strategic or operational goals.

• The records may also contain various documents as evidence of the organizations’ business activities. The documentary evidence the petitioner submitted should corroborate the petitioner’s statements. Depending on the totality of the evidence, a descriptive letter may meet the petitioner’s burden of proof.

Annual Reports

All publicly traded corporations in the United States publish annual reports. Many foreign organizations also publish annual reports. Annual reports provide information describing the organization’s:

• Products and services;

• Management and personnel structure;

• Ownership and control;

• Subsidiaries, affiliates, joint ventures, and branch offices; and

• Current and long-term objectives.

In addition, annual reports should include audited or reviewed financial statements for the past year.

Federal Tax Returns

In general, organizations conducting business in the United States must file federal tax returns each year. Federal tax returns are designed to present information in a manner that is similar to the income statement and balance sheet format.

Internal Revenue Service (IRS) Tax Returns: Form Numbers and Corresponding Information Provided

If organization is a…	Tax return is Form…	Tax return provides a modified income statement	Tax return provides a modified balance sheet
Corporation	1120 or 1120EZ	X	X
S Corporation	1120S or 1120EZ	X	X
Partnership	1065	X	X
Sole Proprietorship	1040, with Schedule C	X
Non-Profit	990 or 990EZ	X	X
Limited Liability Company (LLC)	1120 or 1065 (may be 1040 with Schedule C for a single member LLC owned by a person)	X

Foreign Tax Documentation

Officers should consider the following regarding foreign tax documentation:

• The petitioner may provide copies of foreign tax returns as evidence of the business activities of the foreign entity;

• Canada and most Western European countries require tax returns that are very similar to the United States’ tax returns and are usually credible; and

• Many other countries rely on hand-written tax returns and receipts that are less reliable.

Calendar or Fiscal Year

Organizations publish annual reports and financial statements, and file tax returns based on either a calendar or fiscal year.

Annual Reporting Timelines

If reporting year is a…	Then the year starts on…	And ends on…
Calendar year	January 1st	December 31st
Fiscal Year	The 1st day of any month other than January	The last day of any month other than December

Change of Year for Tax Purposes

An organization cannot change its year for tax purposes (for example, from a fiscal year to a calendar year) without permission from the IRS. Tax returns for consecutive years that have different reporting years may be an indication that the documents are fraudulent. In addition, the ending balances on the balance sheet for 1 year should match the beginning balances for the next year.

B. Evidence for Beneficiary (New Office)

Officers may grant an otherwise eligible petitioner a request for classification as a new office in cases where an established company opens a new office in a new location in the United States, provided it meets the definition of a new office.^[8] The petition must clearly indicate that the petitioner is requesting adjudication under the new office provisions and explain how the new office meets the applicable requirements discussed below.^[9] A petition submitted for what would otherwise appear to be a new office, but that does not contain this request, may be adjudicated under the same standards and requirements applicable to a typical (non-new office) petition.

Special Consideration: L-1A New Office Petitions

The L-1A new office petitioner must establish that the intended operation, within 1 year of petition approval, will support an executive or managerial position.^[10] Therefore, the petitioner must provide information regarding:

• The proposed nature of the office describing the scope of the entity as well as its organizational structure and financial goals;

• The size of the U.S. investment and the financial ability of the foreign entity to remunerate the beneficiary; and

• The organizational structure of the foreign entity.

If coming to the United States to fill a managerial or executive capacity role, the beneficiary’s qualifying experience abroad must have been in a managerial or executive capacity.^[11] Unlike other L-1 petitions, eligibility for L-1A new office approval may not be established through qualifying experience involving specialized knowledge.^[12]

A manager or executive who is required to open a new business or office may be more actively involved in day-to-day operations during the initial phases of the business, but the manager or executive must also have authority and intent to hire staff and have wide latitude in making decisions about the goals and management of the organization.

In addition, the petitioner must demonstrate that sufficient physical premises to house the new office have been secured.^[13]

Special Consideration: L-1B New Office Petitions

If the U.S. entity has been doing business for 1 year or less, the beneficiary, as is the case of other L-1B beneficiaries, must have specialized knowledge. Additionally, the petitioner must demonstrate that sufficient physical premises to house the new office have been secured and that it has the financial ability to remunerate the beneficiary and to commence doing business in the United States.^[14]

Extension of L-1 New Office Petitions

The initial approval of a new office individual petition is limited to a period not to exceed 1 year.^[15] After the first year, the validity of the new office petition may be extended for the same beneficiary for a period of up to 2 years. Extension of the new office petition requires that the petitioner provide the following:^[16]

• Evidence that the United States and foreign entities are still qualifying organizations;^[17]

• Evidence that the United States entity has been doing business;^[18]

• A statement of the duties performed by the beneficiary for the previous year and the duties the beneficiary will perform under the extended petition;

• A statement describing the staffing of the new operation, including the number of employees and types of positions held accompanied by evidence of wages paid to employees when the beneficiary will be employed in a managerial or executive capacity; and

• Evidence of the financial status of the U.S. operation. As an example, evidence may include, but is not limited to, evidence of capitalization of the company or evidence of financial resources committed by the foreign company, articles of incorporation, by-laws, minutes of board of directors’ meetings, corporate bank statements, profit and loss statements or other accountant’s reports, or tax returns.

Following approval of the initial extension of a new office petition, the petitioner is no longer subject to the new office extension provisions; any future extension filing is treated as a regular individual L extension.^[19]

C. Special Considerations

Attestations for L-1A Petitions                                                                                                                        

An attestation that foreign staff will support a position in the United States without supporting evidence generally is not enough to demonstrate eligibility. It is the petitioner’s burden to meet the preponderance of the evidence standard. Types of evidence submitted include, but are not limited to:

• Organizational charts (U.S. and foreign);

• A roster of employees;

• Position descriptions;

• Payroll records with job titles of the staff supporting the U.S. entity; and

• Invoices for services provided by the foreign entity to U.S. entity, other accounting records between the entities (or both).

A petitioner may submit any evidence it believes will prove its case, and officers must consider the totality of all the evidence submitted.^[20]

Evidence Related to Managerial or Executive Positions for L-1A Petitions

The employing organization must be doing business in a manner that would require the beneficiary to perform duties that are primarily managerial or executive in nature. The petitioner may provide a statement that clearly describes:

• The business activities in which the employing organization engages; and

• How the beneficiary’s position relates to organization’s strategic or operational goals.

The record may also contain various documents as evidence of the organizations’ business activities. The documentary evidence submitted should corroborate the petitioner’s statements.

To make an accurate determination of the eligibility of the beneficiary’s position, either in or outside the United States, the petitioner must provide a description of the beneficiary’s duties placed in the context of:

• The personnel structure of the organization; and

• The nature and scope of the business that it conducts.

Where an organization employs only a few people yet claims that the majority of its employees are primarily engaged as managers or executives, officers may request complete position descriptions and hourly breakdowns for the duties performed by all of the people employed by the organization, including one for the beneficiary, as well as copies of corroborative payroll documentation.

Officers may use the position descriptions and payroll documentation to determine who is performing the non-qualifying, operational duties of the business. The entity may be substantial in size, but the department or division where the beneficiary is, or will be, employed may be top-heavy with managers and executives. If the employer is a large organization, officers should limit detailed staffing inquiries to the department or division where the beneficiary has been or will be employed.

On the other hand, the evidence may indicate that the business employs only one or two people, including the beneficiary. In such cases, officers may find it helpful to try to determine who is performing the non-managerial operational duties of the business. The business may not directly employ people to perform the non-managerial services of the business. Instead, the business may contract out some of its functions such as accounting, sales, warehousing, and personnel.

When evaluating the nature of a claimed managerial or executive position, the officer must review the petition and supporting evidence to establish that the beneficiary’s employment qualifies for L-1 purposes.

The evidence must demonstrate the employer’s business activities in a manner that allows for a clear understanding of the products and services that it provides, and how the beneficiary’s position fits into its organizational hierarchy.

A petitioner may not claim to employ a beneficiary as a hybrid executive-manager and rely on partial sections of the two statutory definitions. If the petitioner chooses to represent the beneficiary as both an executive and a manager, it must still establish that the beneficiary is engaged in duties that are primarily either managerial or executive and that the beneficiary meets all four criteria of that definition.

L-1B Petitions

Officers can perform their adjudicatory function most effectively when the petitioner explains in detail the specific nature of the industry or field involved, the nature of the petitioning organization’s products or services, the nature of the specialized knowledge required to perform the beneficiary’s duties, and the need for the beneficiary’s specialized knowledge. To show that the offered position in the United States involves specialized knowledge, the petitioner must submit a detailed description of the services to be performed.^[21]

A petitioner’s statement may be persuasive evidence if detailed, specific, and credible. Officers may, in appropriate cases, however, request further evidence to support a petitioner’s statement, bearing in mind that there may be cases involving circumstances that may be difficult to document other than through a petitioner’s own statement.

The petitioner must also submit evidence that the beneficiary’s prior education, training, and employment qualifies the beneficiary to perform the intended services in the United States.^[22] While the petitioner is required in all cases to compare the beneficiary’s knowledge to that of others, the petitioner may also be able to demonstrate the nature of the claimed specialized knowledge by, among other things, indicating how and when the beneficiary gained such knowledge or explaining the difficulty of imparting such knowledge to others without significant cost or disruption to its business.

Other evidence that a petitioner may submit to demonstrate that a person’s knowledge is special or advanced, includes, but is not limited to:

• Documentation of training, work experience, or education establishing the number of years the beneficiary has been using or developing the claimed specialized knowledge as an employee of the petitioning organization or in the industry;

• Evidence of the impact, if any, the transfer of the beneficiary would have on the petitioning organization’s U.S. operations;

• Evidence that the beneficiary is qualified to contribute significantly to the U.S. operation’s knowledge of foreign operating conditions as a result of knowledge not generally found in the petitioning organization’s U.S. operations;

• Contracts, statements of work, or other documentation that shows that the beneficiary possesses knowledge that is particularly beneficial to the petitioning organization’s competitiveness in the marketplace;

• Evidence, such as correspondence or reports, establishing that the beneficiary has been employed abroad in a capacity involving assignments that have significantly enhanced the petitioning organization’s productivity, competitiveness, image, or financial position;

• Personnel or in-house training records that establish that the beneficiary gained the claimed specialized knowledge through prior experience or training with the petitioning organization;

• Curricula and training manuals for internal training courses, financial documents, or other evidence that may demonstrate that the beneficiary possesses knowledge of a product or process that the organization cannot transfer or teach to another person without significant economic cost or inconvenience;

• Evidence of patents, trademarks, licenses, or contracts awarded to the petitioning organization based on the beneficiary’s work, or similar evidence that the beneficiary has knowledge of a process or a product that either is sophisticated or complex, or of a highly technical nature, although not necessarily proprietary or unique to the petitioning organization; and

• Payroll documents, federal, state, or other governmental wage statements, documentation of other forms of compensation, resumés, organizational charts, or similar evidence documenting the positions held and the compensation provided to the beneficiary and parallel employees in the petitioning organization.

Knowledge that is commonly held, lacking in complexity, or easily imparted to others is not specialized knowledge. A petitioner may submit any other evidence it chooses. In all cases, USCIS reviews the entire record to determine whether the petitioner has established, by a preponderance of the evidence, that the beneficiary has specialized knowledge under the totality of the circumstances, in accordance with the standards set forth in the relevant statutes and regulations.

Merely stating that a beneficiary’s knowledge is somehow different from others or greatly developed does not, in and of itself, establish that the beneficiary possesses specialized knowledge. Ultimately, it is the weight and type of evidence that establishes whether the beneficiary possesses specialized knowledge.

L-1 Blanket Petitions

A petitioner may seek continuing approval of itself and some or all its parent, branches, subsidiaries, and affiliates as qualifying organizations by filing an L-1 blanket petition. A blanket petition is not filed on behalf of a beneficiary, but, rather, to obtain preapproval of related entities. In support of a blanket petition, the petitioner must submit evidence:

• That each of the entities included in the requested list of entities are engaged in commercial trade or services;

• That the petitioning organization has an office in the United States that has been doing business for 1 year or more;

• That the petitioning organization has three or more domestic and foreign branches, subsidiaries, or affiliates;

• That the petitioner and the other qualifying organizations have:

  • Obtained approval of petitions for at least 10 “L” managers, executives, or specialized knowledge workers during the previous 12 months;

  • U.S. subsidiaries or affiliates with combined annual sales of at least $25 million; or

  • A U.S. workforce of at least 1,000 employees;^[23]

• That each entity is doing business; and

• Of the ownership and control of all the entities as USCIS can only approve those entities meeting the definition of a qualifying organization.

The petitioner should list all the foreign entities and all the U.S. entities for which it seeks blanket preapproval.^[24] 

Footnotes

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[^ 1] See 8 CFR 103.2(b)(1).

[^ 2] See Matter of Michelin Tire Corp. (PDF), 17 I&N Dec. 248 (Reg. Comm. 1978). See Matter of Katigbak (PDF), 14 I&N Dec. 45, 49 (Reg. Comm. 1971).

[^ 3] See 8 CFR 103.2(a)(2). See Volume 1, General Policies and Procedures, Part B, Submission of Benefit Requests, Chapter 2, Signatures [1 USCIS-PM B.2].

[^ 4] The burden of evidence is a preponderance, which means it is more likely than not. See​ ​INS v. Cardoza-Fonseca​ (PDF),​ 480 U.S. 421 (1987) (defining more likely than not as a greater than 50 percent probability of something occurring). See ​Matter of ​Chawathe (PDF)​, 25 ​I&N Dec. 369, 376​ (AAO 2010) (citing ​Matter of E-M (PDF)-​, 20 I&N Dec. 77, 79-80 (Comm. 1989)).​ See Volume 1, General Policies and Procedures, Part E, Adjudications, Chapter 4, Burden and Standards of Proof [1 USCIS-PM E.4].

[^ 5] See 8 CFR 214.2(l)(7)(i)(C).

[^ 6] For more information on the 1-year foreign employment requirement, see Chapter 6, Key Concepts, Section G, One-Year Foreign Employment Requirement [2 USCIS-PM L.6(G)].

[^ 7] See Matter of Vaillancourt (PDF), 13 I&N Dec. 654 (Reg. Comm. 1970).

[^ 8] See 8 CFR 214.2(l)(1)(ii)(F). For the definition of new office, see Chapter 6, Key Concepts, Section F, New Office [2 USCIS-PM L.6(F)].

[^ 9] Ideally, this should include an affirmative response to the corresponding question on the Petition for Nonimmigrant Worker (Form I-129). However, if no response is given, but it is clear to the officer based on the materials submitted that the petitioner seeks approval for a new office, the officer may proceed accordingly.

[^ 10] See 8 CFR 214.2(l)(3)(v)(C).

[^ 11] See 8 CFR 214.2(l)(3)(v)(B).

[^ 12] In contrast to the L-1A new office beneficiary, a beneficiary of an L-1B new office petition may qualify for such classification through employment in a managerial, executive, or specialized knowledge capacity.

[^ 13] See 8 CFR 214.2(l)(3)(v)(A).

[^ 14] See 8 CFR 214.2(l)(3)(vi).

[^ 15] See 8 CFR 214.2(l)(7)(i)(A)(3).

[^ 16] See 8 CFR 214.2(l)(14)(ii).

[^ 17] See 8 CFR 214.2(l)(1)(ii)(G).

[^ 18] See 8 CFR 214.2(l)(1)(ii)(H).

[^ 19] See 8 CFR 214.2(l)(14)(i).

[^ 20] Matter of Z-A-, Inc., Adopted Decision 2016-02 (AAO Apr. 14, 2016), does not change the fact that it is the petitioner’s burden to demonstrate by a preponderance of evidence standard that the duties of the beneficiary’s position will be primarily managerial in nature.

[^ 21] See 8 CFR 214.2(l)(3)(ii).

[^ 22] See 8 CFR 214.2(l)(3)(iv).

[^ 23] See 8 CFR 214.2(l)(4)(i).

[^ 24] See 8 CFR 214.2(l)(4)(iv)(B) and 8 CFR 214.2(l)(1)(ii)(G).