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EIG Dispatch – April 24, 2015

April 24, 2015

HIGHLIGHTS

  • Clarification from the AAO on the Meaning of “Doing Business” for EB-1(c) Petitions
  • Update: Australia Eases Requirements for Visa Subclass 457
  • Foreign Nationals in Poland Undergo New Process to Obtain Tax ID Number

CLARIFICATION FROM THE AAO ON THE MEANING OF “DOING BUSINESS” FOR EB-1(C) PETITIONS

On April 9, 2015, the Administrative Appeals Office (“AAO”) issued its decision in Matter of Leacheng International, Inc., focusing its analysis on the meaning of “doing business” in the context of EB-1 petitions. By way of background, Leacheng International, Inc. filed an I-140 Immigrant Petition for Alien Worker for its employee in the EB-1(c) multinational manager classification. Among other requirements for this classification, the petitioner must establish that for at least 1 year it has been doing business, defined as “regular, systematic, and continuous provision of goods and / or services by a firm, corporation, or other entity.”

In this case, the petitioner provided marketing, sales, and shipping services for its Hong Kong-based affiliate, but did not engage in individual contracts on the petitioner’s own behalf. USCIS denied the I-140 petition on the grounds that Leacheng International, Inc. did not meet the definition of “doing business” because it had not engaged in business with other entities outside its own organization. On appeal, the AAO disagreed, specifically stating that “a petitioner may establish that it is ‘doing business’ by demonstrating that it is providing goods and/or services in a regular, systematic, and continuous manner to related companies within its multinational organization.” This decision provides important guidance on the kinds of activities that will qualify as “doing business” for I-140 EB-1(c) petitions.

UPDATE: AUSTRALIA EASES REQUIREMENTS FOR VISA SUBCLASS 457

As an update to our previous report, the Australian temporary skilled worker visa (subclass 457) has undergone further revision with notable requirements being eased. The basic requirements for this visa category are that the beneficiary be sponsored by a business approved by the Department of Immigration and Border Protection, and that the beneficiary possesses the skills required for the position. Effective as of April 18, 2015, the most notable changes include the following:

English Language Proficiency: Australia has eased the requirements for the International English Language Test, now requiring a score of 4.5 in each category with an overall score of 5. Previously, applicants needed to achieve a score of 5 in each category. Additionally, applicants may now take English language tests from other providers. Exempt from the English language requirement include those who studied English at a secondary education level or higher for 5 cumulative years (as opposed to the former requirement of 5 consecutive years) as well as those who have a minimum base salary of AU$96,400.

Market Rate Exemption: To obtain a subclass 457 visa, an employer must demonstrate that the offered salary and other conditions of employment are no less favorable than what would be offered to an Australian performing similar work in the same region. Employers are now exempt from this market rate salary requirement if the employee will earn above AU$180,000 (down from AU$250,000).

Start-Up Business Sponsorship: Under the new revisions, start-ups can sponsor foreign workers for 18 months instead of 12 months.

Foreign Nationals in Poland Undergo New Process to Obtain Tax ID Number

In March, Polish authorities stopped automatically issuing tax ID numbers and PESEL numbers (national ID numbers) to non-EU nationals. This month Polish authorities have stopped automatically issuing these numbers to EU nationals as well.

Previously, PESEL numbers were issued to foreign residents upon registering a local address. The PESEL number is used to access government services, banks, and hospitals, and for tax purposes. Under the new regulations, any foreign national working for a Polish employer and paid in Poland must separately apply for a new NIP or “tax identification number” now being used in lieu of PESEL. The new process adds administrative burdens and costs to employers and foreign nationals (including EU nationals) who require a tax identification number.