US Citizenship and Immigration Services (USCIS) issued an updated policy guidance on January 3, 2018, clarifying that a proxy vote must be irrevocable to establish the requisite control of a company in an L-1 visa petition.
L-1 visas are available to persons who have worked abroad for one continuously year within the preceding three years in an executive, managerial, or specialized knowledge capacity for a firm or corporation or other legal entity, or a parent, subsidiary or affiliate thereof, and who are being transferred temporarily to the United States to work in an executive, managerial, or specialized knowledge capacity for the same employer or a parent, subsidiary or affiliate thereof. The L-1B specialized knowledge visa has a maximum period of stay of five years, compared to the L-1A managerial/executive visa of seven years.
In determining if a qualifying relationship exists, USCIS will evaluate the ownership and control of the respective entities, including the use of proxy votes. Proxy votes are secured when one or more equity holders irrevocably grant the ability to vote their equity to another equity holder, thereby effectively and legally giving the other equity holder “control” over the company or companies in question.
The new policy memorandum states that when proxy votes are a determining factor in establishing control, the petitioner must provide evidence that proxy votes are irrevocable from the date of filing through the time USCIS makes a decision on the petition, along with evidence the relationship will continue during the approval period requested. If there a change in the ownership or control of the organization after the L-1 petition is approved, then the petitioner must file an amended petition that complies with the clarified guidance on irrevocable proxy votes.