The USCIS Adjudicator’s Field Manual (USCIS AFM) which is the manual the CIS uses to adjudicate cases, says that a branch of a foreign entity CANNOT sponsor an L-1A manager for a green card through the I-140 process.
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:
Branch Offices
While the L-1 nonimmigrant visa regulations allow for a “branch office” to petition for a manager or executive, the E13 immigrant visa regulations do not provide for a foreign branch office as a petitioner. The nonimmigrant regulations define the term “branch” as “an operating division or office of the same organization housed in a different location.” 8 CFR 214.2(l)(1)(ii)(J) .
Neither an unincorporated branch office of a foreign employer nor a nonimmigrant alien is competent to offer permanent employment to a beneficiary for the purpose of obtaining an immigrant visa for the beneficiary under section 203(b)(1)(C) of the Act. See Matter of Thornhill , 18 I&N Dec. 34 (Comm. 1981). The petitioner must be a U.S. citizen, corporation, partnership, or other legal entity to file this immigrant visa petition. Thus, a U.S. corporation with an overseas branch may file an E13 petition, but a foreign corporation with a branch office in the United States may not.
However, the USCIS AFM provision is inconsistent with INA § 203(b)(1)(C), which provides:
(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.
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. Therefore, this case is not even relevant.
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. 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.
If a person receives a denial based on this interpretation, it should be questioned since 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.
October 2011