L-1 Visas - Intracompany Transferees

L-1 Visas - Intracompany Transferees

The L-1 nonimmigrant visa classification enables a U.S. employer to transfer an Executive, Manager, or "specialized knowledge" employee from one of its affiliated foreign offices to one of its offices in the United States. Using an L-1 visa also enables a foreign company which does not yet have an affiliated U.S. office to send an executive or manager to the United States to establish one. Similarly, a specialized knowledge employee can also help to establish a U.S. office.

Since the required qualifications and permissible activities differ between executive and managers versus specialized knowledge employees, U.S. immigration law provides that executives and managers are eligible for the L-1A classification, and specialized knowledge employees are covered by the L-1B classification.

The following describes some of the features and requirements of the L-1 nonimmigrant visa program.

General Qualifications of the Employer and Employee

To qualify for L-1 classification in this category, the employer must

• Have a qualifying relationship with a foreign company (parent company, branch, subsidiary, or affiliate, collectively referred to as qualifying organizations); and
• Currently be, or will be, doing business as an employer in the United States and in at least one other country directly or through a qualifying organization for the duration of the beneficiary's stay in the United States as an L-1. While the business must be viable, there is no requirement that it be engaged in international trade.

Doing business means the regular, systematic, and continuous provision of goods and/or services by a qualifying organization and does not include the mere presence of an agent or office of the qualifying organization in the United States and abroad.

Also to qualify, the named employee must

• Generally have been working for a qualifying organization abroad for one continuous year within the three years immediately preceding his or her admission to the United States; and
• For L-1A: Be seeking to enter the United States to render services in an executive or managerial capacity to a branch of the same employer or one of its qualifying organizations; or
• For L-1B: Be seeking to enter the United States to render services in a specialized knowledge capacity to a branch of the same employer or one of its qualifying organizations.

L-1A vs. L-1B

Executive capacity generally refers to the employee's ability to make decisions of wide latitude without much oversight. Managerial capacity generally refers to the ability of the employee to supervise and control the work of professional employees and to manage the organization, or a department, subdivision, function, or component of the organization. It may also refer to the employee's ability to manage an essential function of the organization at a high level, without direct supervision of others.

Specialized knowledge means special knowledge possessed by an individual of the petitioning organization's product, service, research, equipment, techniques, management, or other interests and its application in international markets, or expertise in the organization's processes and procedures. As interpreted by USCIS, such knowledge is beyond the ordinary and not commonplace within the industry or the petitioning organization. In other words, the employee must be more than simply skilled or familiar with the employer's interests.

L-1 Visa Reform Act of 2004

The L-1 Visa Reform Act of 2004 applies to all petitions filed on or after June 6, 2005, and is directed particularly to those filed on behalf of L-1B employees who will be stationed primarily at the worksite of an unaffiliated employer. In order for the employee to qualify for L-1B classification in this situation, the petitioning employer must show tha

• The employee will not be principally controlled or supervised by the unaffiliated employer; and
• The work being provided by the employee is not considered to be labor for hire for the unaffiliated employer.

New Offices

For foreign employers who are seeking to send an employee to the United States as an executive or manager in order to establish a new office, it must also be shown that

• Sufficient physical premises to house the new office have been secured
• The employee has been employed as an executive or manager for one continuous year in the three years preceding the filing of the petition; and
• The intended U.S. office will support an executive or managerial position within one year of the approval of the petition.

Where an employee with specialized knowledge will be employed in a qualifying new office, it must also be shown that the employer has the financial ability to remunerate the employee and begin doing business in the United States.

Period of Stay

Qualified employees entering the United States to establish a new office will be allowed a maximum initial stay of one year. All other qualified employees will be allowed a maximum initial stay of three years. For all L-1A employees, requests for extension of stay may be granted in increments of up to an additional two years, until the employee has reached the maximum limit of seven years. In contrast, for L-1B employees, requests for extension of stay may be granted in increments of up to an additional two years, until the employee has reached the maximum limit of five years.

Family Members of L-1 Workers

The transferring employee may be accompanied or followed by his or her spouse and unmarried children who are under 21 years of age. Such family members may seek admission in L-2 nonimmigrant classification and, if approved, generally will be granted the same period of stay as the employee. If these family members are already in the United States and seeking change of status to or extension of stay in L-2 classification, they may apply collectively, with fee, on Form I-539.

Spouses of L-1 workers may apply for work authorization by filing Form I-765 with USCIS. If approved, there is no specific restriction as to where the L-2 spouse may work.

L-1 Blanket Petition Process

• Certain organizations may establish the required intracompany relationship in advance of filing individual L-1 petitions by filing a blanket petition. In order to establish eligibility for blanket L certification, the employer
• And each of the qualifying organizations must be engaged in commercial trade or services
• Must have an office in the United States which has been doing business for one year or more
• Must have three or more domestic and foreign branches, subsidiaries, and affiliates
• Must meet one of the following criteria: Along with the other qualifying organizations, have obtained at least 10 L-1 approvals during the previous 12-month period; or Have U.S. subsidiaries or affiliates with combined annual sales of at least $25 million; or Have a U.S. work force of at least 1,000 employees.

The approval of a blanket L petition does not guarantee that an employee will be granted L-1A or L-1B classification. It does, however, provide the employer with the flexibility to transfer eligible employees to the United States quickly and with short notice without having to file an individual petition with USCIS. In most cases, once the blanket petition has been approved, the employer need only complete a shortened version of the L-1A or L-1B petition, and send it abroad to the employee along with a copy of the blanket petition Approval Notice and other required evidence, so that the employee may present it to a consular officer.

For more information about Goel & Anderson's L-1 visa services, please contact us to schedule an in-person or telephonic consultation.