Temporary Visa for Intra-Company Transferees: the L-1 Visa
L-1 non-immigrant visas provide for admission of foreign nationals who, within three years preceding the application for admission, were employed abroad continuously for one year by a parent, branch, affiliate, or subsidiary of the U.S. petitioning company and are now being temporarily transferred to the United States. L-1A visas are for positions in managerial or executive capacities, while L-1B visas are for positions involving specialized knowledge.
Primary Requirements and Considerations for L-1A and L-1B Visas
- Foreign national must have worked for a qualifying company abroad for at least one continuous year during the 3 years immediately preceding the application for admission to the United States. The one-year employment must be full-time and take place outside of the United States, and the one-year requirement cannot be met by working part of the year for an affiliate or branch in the United States. However, time spent in the United States (i.e., in another status) will not interrupt the continuity of the one year, as long as there is a qualifying relationship between the U.S. and foreign entities.
- A qualifying organizational relationship between the foreign and U.S. entities may exist in the cases of parent company and subsidiary; majority stock ownership in both companies; joint ventures with less-than-majority ownership, but control; subsidiary-affiliate relationship, and others. Contractual relationships (i.e., licensing/franchising) are generally not sufficient. Organizations include corporations, companies, organizations, partnerships, associations, trusts, foundations and funds.
- The U.S. petitioning entity must be doing business as a qualifying organization and engage in the regular, systematic, and continuous provision of goods and/or services. Business registration alone or the mere presence of an agent or office are not enough.
- If the foreign national is the owner or majority stockholder in the organization, the L-1 petition must include evidence that the services will be temporary and the foreign national will be transferred abroad upon completion of the temporary U.S. assignment.
- Foreign national must be employed in a managerial or executive capacity (for an L-1A), or have a position which requires specialized knowledge (for an L-1B).
- L-1 visa holders can work part-time for more than one subsidiary of the same company, as long as individual petitions are filed for each subsidiary to establish a qualifying relationship. While full-time employment is not required, the foreign employee must dedicate a significant portion of time on a regular and systematic basis to the U.S. employer. No self-employment allowed.
L-1A Visa Specifics for Managers and Executives
- Foreign national must have been in a managerial or executive position abroad, but does not have to be transferred to the United States in the same capacity as abroad.
- Managerial capacity requires that the foreign employee primarily (1) manages the organization, department, subdivision, function, or component; (2) supervises and controls the work of other supervisory, professional, or managerial employees, or manages an essential function within the organization or department or subdivision of the organization; (3) has authority to hire and fire or recommend personnel actions (if other employees directly supervised), or if no direct supervision, functions at a senior level within hierarchy or as to the function managed; and (4) exercises discretion over day-to-day operations of the activity or function.
- First-line supervisors are not considered managers, unless the employees they supervise are professionals.
- Executive capacity requires that the foreign employee primarily (1) directs the management of the organization or major component or function; (2) establishes goals and policies; (3) exercises wide latitude in discretionary decision-making; and (4) receives only general supervision or direction from higher-level executives, board of directors, or stockholders.
- A U.S. petitioner must establish that at least half of the foreign beneficiary’s time is devoted to executive or managerial duties.
- Foreign national may be a function manager or executive, even if he or she is the only employee of the company, where outside independent contractors are used or where the business is complex.
- L-1A visa holders (unlike L-1B visa holders) may apply for a green card in the EB-1 category without the need for a labor certification.
L-1B Visa Specifics for Specialized Knowledge Employees
- Foreign national must have been in a specialized knowledge position abroad, but does not have to be transferred to the United States in the same capacity as abroad.
- Specialized knowledge is different from that generally found in the particular industry. The specialized knowledge requirement for L-1B visas dictates that the foreign national have special knowledge of the U.S. petitioning company’s product, services, research, equipment, techniques, management, or other interests and its application in international markets OR an advanced knowledge or expertise in the organizational processes and procedures. Special is defined as surpassing the usual, distinct among others of a kind. Advanced is defined as highly developed or complex.
- The knowledge need not be proprietary or unique, but it must be different or uncommon.
- Specialized knowledge for L-1B visas can be proven by showing that the foreign national (1) possesses knowledge that is valuable to the employer’s competitiveness in the market place; (2) is uniquely qualified to contribute to the U.S. employer’s knowledge of foreign operating conditions as a result of knowledge not generally found; (3) has been employed abroad in a key capacity involving significant assignments which have enhanced the employer’s productivity, competitiveness, image, or financial position; (4) possesses knowledge which, normally, can be gained only through prior experience with the employer; (5) possesses knowledge of a product or process that cannot be easily transferred or taught to another individual, but is gained through extensive prior experience with the employer; (6) possesses advanced, generally-not-known knowledge of processes and products that would be difficult to impart to another without significant economic inconvenience to the U.S. or foreign firm; and/or (7) has knowledge of a process or a product that is of a sophisticated nature which is generally is not found in the United States.
- An L-1B petition must explain and document how the foreign national obtained the specialized knowledge, that the foreign national actually possesses specialized knowledge, that the position abroad involved specialized knowledge, and that the position in the United States will involve specialized knowledge.
- An L-1B Petition must be accompanied by a detailed job description that also details how the foreign national’s knowledge of the U.S. company’s equipment, system, product, technique or service is special and/or advanced. This can be documented with (1) training records; (2) a detailed description of proprietary knowledge; (3) patents held by the company; (4) organizational charts; (5) published material about the foreign national; (6) a high level of remuneration compared to others; (7) human resources records; and (8) a description of the impact on the U.S. business if L-1B status is not granted.
- Simply being a skilled worker is not sufficient for L-1B purposes.
New Office L-1 Visas
Special provisions apply to a new U.S. parent, subsidiary, branch, or affiliate office seeking to employ an L-1A manager or executive, but not having proof of business activities yet. A new office is an organization that has been doing business in the United States through a parent, branch, affiliate, or subsidiary for less than one year. In such a case, the L-1 petition must also include:
- Information about the proposed nature of the U.S. office (scope of entity, organizational structure, and financial goals);
- Information about the size of the U.S. investment and the financial ability of the foreign entity to remunerate the foreign national and to commence doing business in the U.S.;
- Information about the organizational structure of the foreign entity.
- Evidence that sufficient physical premises have been secured (i.e, in the form of a lease agreement
- Corporate bank statement for the U.S. entity;
- Documents evidencing business opportunities for the U.S. company (letters of intent, proposals, draft contracts, etc.)
- Evidence that the U.S. entity will, within one year, support an executive or managerial position.
- A business plan projecting staff levels by the end of Year 1 may be submitted.
Blanket L Visas
The Blanket L petition is a process allowing large multinational companies to receive approval to transfer employees in L-1 status to the United States. The company files a petition with the USCIS, requesting “blanket” approval that the company and the specified foreign affiliates have a qualifying relationship, and meet the additional requirements for the Blanket L. Upon approval, a transferring employee may petition for an L-1 visa directly to the U.S. Consulate or Embassy. This allows a multinational company to transfer employees to the United States quickly and on short notice. The foreign office where the transferring employee worked must have been included in the Blanket L petition. If the foreign office was not included, the employer must file an individual L-1 petition. The transferred employee must still meet the requirements for the L-1A visa or for the L-1B visa. A company may apply for a Blanket L visa to speed up the transfer process under the following circumstances:
- The U.S. petitioner has an office and has been doing business in the United States for at least one year.
- The U.S. petitioner has three or more domestic and foreign branches, subsidiaries, or affiliates.
- The U.S. petitioner and the foreign entities are engaged in commercial trade or services.
- The combined annual sales of the company are at least $25 million, the U.S. workforce consists of at least 1,000, or the company received approval of at least ten L-1 petitions in the last 12 months.
- The foreign employee must work abroad for the parent, subsidiary, or affiliate for at least 12 months.
Non-profit organizations cannot file Blanket L petitions. Blanket petitions are initially approved for three years, but can be extended. The foreign beneficiary of a Blanket L petition may be admitted for three years even if the initial validity of the blanket petition will expire before that time.
Period of Stay in L-1 Visa Status
L-1 visas are approved for three years, with the possibility to extend status. A new office petition, on the other hand, may be approved for only one year. It may be extended upon presentation of evidence that the business is active and operating. Such evidence includes the number of employees, significant growth in cash flow, presence of significant customers and clientele, and similar elements. There is a 7-year maximum for L-1As and a 5-year maximum for L-1Bs. The 5-year maximum for L-1Bs may be extended to 7 years where the foreign employee becomes a manager or executive at least 6 months before the 5 years expire and USCIS approved a change of status to L-1A.
Family of L-1 Visa Holders
Spouses and unmarried children under the age of 21 of L-1 visa holders may apply for L-2 dependent status. The 5/7-year limitations also apply to L-2 visa holders. If the limitation is not reached, an L-2 visa holder may remain in the United States and change status, even if the L-1 visa holder departs. L-2 spouses are eligible to apply for employment authorization in the United States.
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