How a Post-COVID Approach Resolved an L1A RFE
This was an L1A RFE received for an application for a Brazilian software development company, Silva Software de Concepção, that wanted the beneficiary to establish a new office in the US from which existing software could be marketed and distributed. The intent was to hire US developers as well to develop US-specific versions of the software, which was an AI-based structural engineering calculation and project management integrated solution. There was also a virtual reality safety component in the research and development stage. The Company had already used this model to establish a niche market foothold in several other countries.
The initial investment by the parent company, Silva Software de Concepção, provided for the initial hire of three marketing employees and three Salesforce employees that would establish and implement a nationwide virtual distribution program. Silva had set up such operations in two other countries and the new offices had operated out of a brick-and-mortar office in the city in which they were headquartered. These had been established before the pandemic. After submitting an application for a new office in the US, the petitioner had received an RFE for not establishing to the satisfaction of the USCIS that the new office had been set up according to existing guidelines.
Successful Resolution of an L1A RFE for a new Office Application
The L1A RFE received by Silva Software de Concepção questioned--among other things--two primary inclusions in the application. First, the USCIS questioned whether there was adequate documentation to establish that a new office in the US did in fact exist. Also called into question was the basis for the US revenue projections since this income would ultimately support the new office operation. A response was required that would adequately answer these questions to the satisfaction of the USCIS.
"Your lease agreement lacked sufficient detail to determine whether the new location is sufficient for the proposed business. You have not provided us the actual office size to appear sufficient for a total of three or more people.”
The New Office and the New Reality
A copy of the lease had been requested by the USCIS. The Silva Software de Concepção US operation had not, in fact, obtained office space because the City's stay-at-home mandates were becoming increasingly restrictive and they didn't even know if they would be able to use the office space. At this point, Silva felt that leasing office space might well be an expense that shouldn't be incurred. Commercial leasing rates in the City were high as it is and this could turn out to be a waste of money.
Remote--But Not Always
Given the USCIS requirement to obtain leased space, Silva proposed a hybrid remote work/office work arrangement. This approach was accepted. At least through the first six months of 2021, the employees would have no choice but to work at home. At the point that the COVID mandates became less restrictive, this arrangement would allow them to cost-effectively operate without sacrificing productivity.
"A copy of the market research study, or similar, by which the foreign company determined the need for, and the probability that the proposed U.S. company would support, a manager or executive within one year of approval of the petition.”
The post-COVID Market for Silva's Product
The USCIS requested that Silva establish the feasibility of the new operation in the US. Revenue projections and market penetration estimates that they presented were based on historical performance of the Company in South America and the two Asian locations. This approach had to be altered for two reasons. First, and most obvious, any revenue projections must take into consideration a post-COVID economy. Also, the projections need to be specific to the United States and its economy over the next five years.
Ironically, even though 2020 estimates for commercial construction and engineering services anticipate declines of up to 8%, the picture to 2025 is more positive. By simply using their historical figures, Silva had not presented an accurate post-COVID projection for this industry. While it was unrealistic to assume that the new US operation could achieve that type of revenue growth in a post-COVID environment, a modest projection of one percent to 1.5% a year based on industry projections would be reasonable--and justifiable at this time.
USCIS Approval of Petition
The Request for Evidence issued by the USCIS was successfully resolved and the petition approved within a month.
While we did not create the original business plan in this instance, we did create a new one for the L1A RFE response because the petitioner was not presenting a new business model, they were simply clarifying how their original business model qualified the beneficiary for an L-1A visa.