L-1 VISA

L-1 VISA – Intra-Company Transferees (more info)

What is an L-1 intra-company transfer visa?

L-1 intra-company transfer visas are non-immigrant visas available to persons who work for an overseas company with a parent, subsidiary, branch, or affiliate in the U.S. The worker comes to the U.S. to temporarily perform services in a managerial or executive position (L-1A) or, a position which entails specialized knowledge (L-1B) for a parent, subsidiary, branch, or affiliate company of the employer/company abroad. There is currently no annual cap on L-1 visas.

What are the requirements for an L-1 intra-company transfer visa?

• The employee must have been employed continuously abroad by the parent, subsidiary, branch, or affiliate of the U.S. company for one of the past three years preceding the filing of the L-1 visa petition.
  • Any time spent working in the U.S. will not count toward the one year of required employment, though time spent in the U.S. will not be considered to have disrupted the continuity of employment abroad.
  • A combination of part-time employment can be used to meet the one year requirement if the part-time work is for affiliated companies.
• The employer must be a firm, corporation or other legal entity or its parent, subsidiary, branch, or affiliate. This includes profit, non-profit, religious, and charitable organizations. It does not matter if the company is incorporated or not.

• The employee must continue to work in a capacity that is managerial or executive (L-1A) or a position that involves specialized knowledge (L-1B).

• The foreign employer and the U.S. employer must have a “qualifying relationship.” Both must have common majority ownership, or, where there is less than majority ownership, common control by the same person or entity. Ownership by a common group of owners where no owner has control or a majority interest can cause a problem if each individual owner does not own approximately the same amount of both the US and the foreign company. This problem can sometimes be worked around if the owners have set up a voting agreement to ensure that there are not different groups controlling the foreign firm and the US firm.

• The employee must intend to depart the U.S. when his or her stay is over. However, the employee may also pursue permanent residency simultaneously without a negative impact on the ability to keep or extend an L visa. This is because the doctrine of dual intent applies to L-1 visas (just like H-1B visas). This makes the L visa a popular option for multinational firms.

How are “manager” and “executive” defined?

A “manager” is defined as one who primarily:

1. Manages the organization, department, subdivision, function or component of the organization;
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 the authority to hire and fire or recommend personnel actions, or if no direct supervision, functions at a senior level within hierarchy or as to function managed; and
4. Exercises discretion over day-to-day operations of the activity or function.

An “executive” defined as one who primarily:

1. Directs the management of the organization or a 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. (Note: the USCIS will take into account the reasonable needs of the organization, component or function in light of the overall purpose and stage of development of the organization, component or function. The number of employees supervised is not determinative.)

How is “specialized knowledge” defined?

Specialized knowledge is defined as one who has specialized knowledge of the company product, service, research, equipment, techniques, management or other interests and its application in world markets; or, as one with advanced or proprietary knowledge of the company’s processes or procedures.

Characteristics of a person with “specialized knowledge” include:

• Possesses knowledge that is valuable to the employer’s competitiveness in the market place;
• Is uniquely qualified to contribute to the U.S. employer’s knowledge of the foreign operating procedures;
• Has been a key employee at foreign employer and has been given significant assignments which have enhanced the employer’s productivity, competitiveness, image or financial position; and
• Possesses knowledge that can be gained only through extensive prior experience with that employer.

What are the time limits for L-1A visa holders?

L-1A visa holders (managers and executives) may stay in L-1 status for up to seven years. In most cases, the visas will be granted in three year increments.

What are the time limits for L-1B visa holders?

L-1B visa holders (specialized knowledge employees) may stay in L-1 status for up to five years. The first petition will be granted for up to three years.

Special rules for persons coming to work in a new office in the U.S.

A new office is defined as “an organization which has been doing business in the U.S. through a parent, branch, affiliate, or subsidiary for less than one year.” The definition requires the new office to “be doing business”; therefore, the mere presence of an agent or office is not enough to satisfy the new office requirement. In order to qualify for an L-1 where a new office is involved, the U.S. employer must submit evidence that:

1. Sufficient physical premises (office space) have been obtained;
2. The employee meets the one-year continuous employment requirements; and
3. The intended U.S. operation within one year will support an executive or managerial position. To meet this requirement, the evidence should include:
   1. Proposed nature of the office and description of the scope of the entity, the organizational structure, and its financial goals;
   2. The size of the U.S. investment and the financial ability of the foreign entity to pay the L-1 transferee and to commence doing business; and
   3. The organization structure of the foreign entity.

Workers coming to open up a new office in the U.S. will only be granted an L-1 visa for a period of one year. If the company wants to have the L-1 visa extended beyond the initial year, it will have to demonstrate at the time of extension that it has proceeded with the plans outlined in the initial petition and the business is active and operating.

The USCIS closely scrutinizes cases where the transferred employee also has an ownership interest in the company, since they cannot be certain that the owner intends to ever leave the U.S. Therefore, the U.S. employer will need to show that their need for the transferee is not indefinite and that the transferee’s foreign business interests are a strong lure for the person to return upon the expiration of the transferee’s stay in the U.S.

How do I apply for L-1 status?

The L-1 Petition is filed by the U.S. Employer using Form I-129, Petition for Non-Immigrant Visa, and L Supplement. The forms should be accompanied by a letter of support from the U.S. Employer, documentary evidence described above, and the appropriate filing fee. The L-1 Petition is filed with the USCIS Regional Service Center having jurisdiction over the area of intended employment. L-1 Petitions are approved in three year increments, unless the U.S. employer is a new office in which case the petition would only be approved for one year.

After the USCIS approves the petition, the L-1 worker/transferee must apply at the U.S. Consulate for the visa. The Consulate normally issues the visa unless it believes the USCIS has been defrauded or was not aware of important information at the time of issuing the approval.

What if my company has a large number of applicants?

There are special procedures that make it easier for companies sending over large numbers of applicants to get L-1 visas for their employees. Companies that qualify can receive a “blanket approval” for all of their workers rather than having to apply to USCIS individually for each employee. To qualify for a blanket petition, the U.S. Employer (Petitioner) must meet the following requirements:

• Must have an office and have been doing business in U.S. one year;
• Must have 3 or more domestic and foreign branches, subsidiaries or affiliates; all of which must be engaged in commercial trade or services;
• Combined U.S. annual sales of $25 million, U.S. workforce of 1,000 or received approval of at least 10 L-1 petitions in the past 12 months;
• Must not be a non-profit organization; and
• The L-1 employee must have worked abroad for parent company, affiliate or subsidiary for 12 months.

The procedures for filing are largely similar to that of a regular L-1 petition, except that the employer must complete Form I-129S and must submit evidence showing the above requirements are met. In addition, the U.S. employer’s petition letter can be replaced with a company letter summarizing the basis for the L-1 petition.

What visa status would the spouse and children of an L-1 nonimmigrant receive?

Spouses and children of L-1 visa holders may be granted L-2 visas. The 5 and 7 year time limitations on admission and extensions for L-1s apply to spouses and children.

Can my spouse work while in the U.S. in L-2 status?

Recent changes in the law made spouses of L-1 visa holders eligible for employment authorization. An L-2 spouse can apply for work authorization upon entering the U.S. by filing an I-765 Application for Employment Authorization with the appropriate USCIS Regional Service Center.

In addition to the I-129 base fee, there is a Fraud Prevention and Detection Fee of $500.00 for new petitions. This fee is collected only one time for a petition involving a beneficiary and an employer. It is submitted to the USCIS at the time of filing