The Trouble With the VIBE

” To establish a “qualifying relationship,” the petitioner must show that it and the beneficiary's foreign employer are either the same employer, for example, a U.S. entity with a foreign branch office or, alternatively, related as a “parent and subsidiary” or as “affiliates.” -

PM-602-0155
L-1 Qualifying Relationships and Proxy Votes
December 29, 2017

VIBE is No Longer

The trouble with the VIBE, quite simply, is that it is no longer an available option for validating the coporate linkage between US companies and their foreign parent.  A VIBE certification became a de facto requirement for L1A and L1B applications and RFEs as well as many other types of visa applications.  It has been relied on for some time to establish this relationship.

While the Dun and Bradstreet system was cumbersome and difficult to navigate, it was a free option that satisfied USCIS requirements.  The medium for VIBE validation through D&B was iUpdate, a now defunct option for verifying the status of a company.  There are still options for doing this through D&B but they are costly.

It appears that the USCIS has yet to publish any information on this change or alternatives, so we will explore some options here.  We believe that we can offer our clients a viable option that will adquately establish the corporate linkage and will verify the status of the two entities.

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Contact us about our validation solution

The USCIS characterized the VIBE program as a Web-based tool designed to enhance USCIS’ adjudications of certain employment-based immigration petitions. VIBE uses commercially available data from an independent information provider (IIP) to validate basic information about  companies or organizations petitioning to employ certain alien workers. At that time, Dun and Bradstreet was the independent information provider for the VIBE program.

Why did adjudicators begin to use VIBE in the first place?  When adjudicating employment-based petitions, USCIS must primarily rely on paper documentation supplied by the petitioning company or organization to establish the petitioner’s eligibility for the requested classification. When petitioners’ paperwork does not sufficiently document the evidence required under the law, USCIS must issue a Request for Evidence ( Request for Evidence) for additional documentation, delaying final adjudication of the petition. The VIBE program was introduced to address some of these issues.

VIBE certification was also valuable because Dun and Bradstreet offered the option for users to update their company information within a few days.

PM-602-0155 L-1 Qualifying Relationships and Proxy Votes

PM-602-0155 This policy memorandum (PM) clarifies the 1982 precedent decision, Matter of Hughes, by instructing officers that proxy votes must be irrevocable from the time of filing the L-1 petition through adjudication to establish a qualifying relationship. The petitioner must file an amended petition if any changes of ownership and control of the organization occur after USCIS adjudicates the petition.

If a foreign employer would like to transfer an employee working abroad to a U.S. company as an L-1 beneficiary, a qualifying relationship must exist between the beneficiary’s foreign employer and the petitioner at the time of filing. To establish a “qualifying relationship,” the petitioner must show that it and the beneficiary's foreign employer are either the same employer, for example, a U.S. entity with a foreign branch office or, alternatively, related as a “parent and subsidiary” or as “affiliates.”

”Either the foreign or U.S. entity must own and control the other entity or both must be subsidiaries owned and controlled by the same parent entity or person.  In the context of this visa classification, ownership refers to the direct or indirect legal right of possession of the assets of an entity with full power and authority to control. Control means the direct or indirect legal right and authority to direct the establishment, management, and operations of an entity.

A qualifying relationship exists when the U.S. employer is an affiliate, parent, or subsidiary of the foreign firm, corporation, or other legal entity.

To establish a qualifying relationship under the statute and the regulations, the petitioner must show that the beneficiary's foreign employer and the proposed U.S. employer are the same employer (for example, a U.S. entity with a foreign office) or related as a parent and subsidiary or as affiliates.” -

Chapter 4 - Multinational Executive or Manager
B. Petitioner Requirements

VIBE and the Multinational Manager

Subsidiary and Parent
The term subsidiary means a firm, corporation, or other legal entity of which a parent owns, directly or indirectly:

  • More than half of the entity and controls the entity;
  • Half of the entity and controls the entity;
  • 50 percent of a 50-50 joint venture and has equal control and veto power over the entity; or
  • Less than half of the entity, but in fact controls the entity.

While the term parent is not directly defined by the regulations, it is understood to mean the owner of a subsidiary.

Affiliate
There are three types of qualifying affiliate relationships:

  • One of two subsidiaries, both of which are owned and controlled by the same parent entity or person;
  • One of two legal entities owned and controlled by the same group of people, each owning and controlling approximately the same share or proportion of each entity; and
  • A partnership that is organized outside the United States to provide accounting services, along with managerial or consulting services, and markets those services under an internationally recognized name, as part of an agreement with a worldwide coordinating organization (of which the U.S. entity is a member) that is owned and controlled by the member accounting firms, partnership, or similar entity organized outside the United States.

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Our VIBE Solution

It is still too early in the game to say with certainty that the USCIS will accept our solution for corporate linkage validation.  We do believe, however, that it is in acceptable form and relays enough information for adequate validation.  Dun and Bradstreet has not been eliminated from the equation, as their data is a substantial part of this resource.  While this is a subscription service for us, as always, we provide this (if the relationship can be established) as a free service to our clients.  It is also available to non-clients as a paid service.

VIBE's Replacement:  The UEI, Unique Entity Identifier

On April 4, 2022, the federal government stopped using the DUNS Number to uniquely identify entities. Now, entities doing business with the federal government use the Unique Entity ID created in SAM.gov. They no longer have to go to a third-party website to obtain their identifier. This transition allows the government to streamline the entity identification and validation process, making it easier and less burdensome for entities to do business with the federal government.

The primary drawback of the UEI system is that, while obtaining the UEI number is quite easy, the time it takes to establish the corporate linkage between the foreign parent and US entity may take two to four weeks or more.  If you have that amount of time before submitting your application, you should use this system since it is provided at no cost--just as VIBE iUpdate was before.  In order to establish corporate linkage, you may have to apply for UEIs for both the foreign and US companies.  There are instructions on the sam.gov website detailing how to do this.

APPLY FOR A UNIQUE ENTITY IDENTIFIER (UEI) HERE

Applying for a Unique Entity Identifier

The transition from the DUNS Number to the Unique Entity ID is a federal governmentwide initiative. The Office of Management and Budget (OMB) directed federal agencies to complete their system transitions to the Unique Entity ID no later than April 4, 2022. Agencies across the federal government have implemented changes.

Refer to the Guide to Getting a Unique Entity ID if you want to get a Unique Entity ID for your organization without having to complete an entity registration. If you only conduct certain types of transactions, such as reporting as a sub-awardee, you may not need to complete an entity registration. Your entity may only need a Unique Entity ID.

Corporate Linkage, As Defined by PM-602-0155

VIBE, Validation Instrument for Business Enterprises, SAM, Unique Entity Identifier, UEI, L1A, L1B, RFE, Dun and Bradstreet, USCIS, PM-602-0155, Matter of Hughes, SAM, GSA, Get a Unique Entity ID Video, DUNS, Guide to Getting a Unique Entity ID, OMB, 8 CFR 214.2, nonprecedent decisions, Appeal 19925600, Appeal 19727391, Immigration and Nationality ActAccording to the USCIS in PM-602-0155, when determining whether a qualifying relationship exists between the foreign employer and the petitioner, ownership and control are two of the factors that must be examined. Ownership means the legal right of possession with full power and authority to control. Control means the right and authority to direct the management and operations of the business entity.

Before defining the term “qualifying organization” in the regulations, the former Immigration and Naturalization Service (INS) addressed the necessary corporate relationship for intracompany transfers in precedent decisions. The INS addressed the joint venture situation in Matter of Hughes, which provided an extensive analysis of the meaning of affiliation for L-1 purposes. The INS Commissioner found that “[i]n order to be deemed affiliates, companies should be bound to one another by substantial, but not necessarily majority, ownership of shares,” but “[m]ore importantly, affiliation requires that the financial link between two entities involve control by one over the management of another.”

A parent is “a firm, corporation, or other legal entities which has subsidiaries.” 8 CFR 214.2(l)(1)(ii)(I). A subsidiary is “a firm, corporation, or other legal entity of which a parent owns, directly or indirectly, more than half of the entity and controls the entity; or owns, directly or indirectly, half of the entity and controls the entity; or owns, directly or indirectly, 50 percent of a 50-50 joint venture and has equal control and veto power over the entity; or owns, directly or indirectly, less than half of the entity, but in fact controls the entity.” 8 CFR 214.2(l)(1)(ii)(K).

An affiliate means “(1) one of two subsidiaries both of which are owned and controlled by the same parent or individual, or (2) one of two legal entities owned and controlled by the same group of individuals, each individual owning and controlling approximately the same share or proportion of each entity, or (3) in the case of a partnership that is organized in the United States to provide accounting services along with managerial and/or consulting services and that markets it accounting services under an internationally recognized name under an agreement with a worldwide coordinating organization that is owned and controlled by the member accounting firms, a partnership (or similar organization) that is organized outside the United States to provide accounting services shall be considered to be an affiliate of the United States partnership if it markets its accounting services under the same internationally recognized name under the agreement with the worldwide coordinating organization of which the United States partnership is also a member.” 8 CFR 214.2(l)(1)(ii)(L).

Our VIBE Solution

It is still too early in the game to say with certainty that the USCIS will accept our solution for corporate linkage validation.  We do believe, however, that it is in acceptable form and relays enough information for adequate validation.  Dun and Bradstreet has not been eliminated from the equation, as their data is a substantial part of this resource.  While this is a subscription service for us, as always, we provide this (if the relationship can be established) as a free service to our clients.  It is also available to non-clients as a paid service.

Expected Content of New Validation Documentation

It is anticipated that this system will produce the same high-quality validation provided by the VIBE system:

Business activities, such as type of business (North American Industry
Classification System code), trade payment information, and status (active or
inactive).
•Financial standing, including sales volume and credit standing.
•Number of employees, both on-site and globally.
•Relationships with other entities, including foreign affiliates.
•Type of office. (Examples include single entities, branches, subsidiaries and
headquarters.)
•Type of legal entity. For example, LLC, partnership or corporation.
•Company executives.
•Date of establishment as a business entity.
•Current physical address.

A New Alternative to the VIBE

We are leasing a database that contains information about businesses worldwide.  If a link has been established between the Foreign Parent Entity and US Entity through publicly available documentation, it should be in this database. 

Are you are in the process of setting up your business in the US for the purpose of a L1A/L1B intracompany transfer?  If so, we strongly recommend you consider the requirement for establishing the qualifying relationship as you document your business.  Consider having the foreign parent set up the entity in the State so that the relationship is established at the outset.  Be sure to put the linkage in the State and local documents you file so that it is discoverable. 

The content of our validations will vary depending on the amount of information available about the Company queried.  For those with sufficient data, however, we expect the information shown at left (at least) to be in the validations.  There may be more than one document--and more than one source--describing the entities individually and as connected entities.

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Is the UEI Mandatory?

Is getting a Unique Entity Identifier mandatory?  No, it is not.  But it is one, no-cost way to fulfill the requirements previously met by a VIBE certificate.  As we said, we also provide our clients with our UEI/VIBE alternative at no charge.  It is prudent to choose one of the new options--one less reason for the USCIS to issue an RFE.

Non-Precedent Decisions on Qualifying Relationships

June 13, 2022
In Re: 19925600
Appeal of Nebraska Service Center Decision
Form 1-140, Petition for Multinational Managers or Executives

The Petitioner, describing itself as an operator of a franchised restaurant location, seeks to permanently employ the Beneficiary as its chief executive officer (CEO) in the United States under the first preference immigrant classification for multinational executives or managers. Immigration and Nationality Act (the Act) section 203(b)(l)(C), 8 U.S.C. § 1153(b)(l)(C).

The Director of the Nebraska Service Center denied the petition, concluding the Petitioner did not establish that: 1) it had a qualifying relationship with the Beneficiary's foreign employer, 2) it was doing business as defined by the regulations, 3) the foreign employer was doing business abroad, 4) it had the ability to pay the Beneficiary's proffered wage, 5) the Beneficiary would be employed in a managerial or executive capacity in the United States, and 6) the Beneficiary was employed abroad in a managerial or executive capacity. On appeal, the Petitioner contends the Director erred as to each ground for denial and asserts the Beneficiary is eligible for the benefit sought.

Read More Here...


March 18, 2022

In Re: 19727391
Appeal of Texas Service Center Decision
Form 1-129, Petition for L-lA Manager or Executive

The Petitioner, a manufacturer of personal transporters, seeks to continue the Beneficiary's temporary employment as its Senior Director of Product Management and Marketing under the L-lA nonimmigrant classification for intracompany transferees. Section 101(a)(15)(L) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1101(a)(15)(L).

The L-lA classification allows a corporation or other legal entity (including its affiliate or subsidiary) to transfer a qualifying foreign employee to the United States to work temporarily in a managerial or executive capacity.

The Director of the Texas Service Center denied the petition, concluding that the Petitioner did not establish, as required, that it has a qualifying relationship with the Beneficiary's foreign employer. The matter is now before us on appeal.

Read More Here...

Our VIBE Solution

It is still too early in the game to say with certainty that the USCIS will accept our solution for corporate linkage validation.  We do believe, however, that it is in acceptable form and relays enough information for adequate validation.  Dun and Bradstreet has not been eliminated from the equation, as their data is a substantial part of this resource.  While this is a subscription service for us, as always, we provide this (if the relationship can be established) as a free service to our clients.  It is also available to non-clients as a paid service.

Why Work With Us?

Our work is due diligent and well-accepted by the USCIS.  We create reasonable Immigration Visa Business Plans that are among the best visa business plans available.  We have included corporate linkage validation information in our plans for a very long time and it has definitely increased plan acceptance.  We have now committed ourselves to finding a VIBE alternative because we know that this verification will still be required--even though VIBE is no longer offered.  Our plans represent you, your investment and your business as vital entrants into the United States economy.  Our pricing is reasonable and begins at $1,500.

If you have received an RFE or NOID, get in touch with us:  We are RFE experts.

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