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Court’s Support Restrictive View of Jump from L-1 to EB-1 (for sole employee operations)

Niagara Handpiece, Ltd. v. United States Citizenship & Immigration Servs., (W.D.N.Y. Sept. 23, 2006):

The foreign national was the president and sole employee of the employer, a New York corporation, which was affiliated with a Canadian company. The employee repaired dental equipment, managed sales and marketing, and worked on business expansion plans. The employee had previously qualified for a non-immigrant L-visa. However, USCIS denied plaintiffs’ petition to classify the employee as an employment based immigrant under EB-1(c), as a multinational executive or manager. In reviewing USCIS’s decision, the court held that defendant’s finding that the employer did not show that the employee’s duties were primarily managerial or executive was not arbitrary or capricious. By performing most of the employer’s operational tasks, the employee was not employed in such capacities. The employee’s duties were also not “managerial” under 8 U.S.C.S. § 1101(a)(44)(A) because he was the sole employee. Although the employee had previously received a non-immigrant visa under 8 U.S.C.S. § 1101(a)(15)(L), this did not guarantee approval of the employee’s current petition.