Call us now!!
1-973-565-9191
  Powered by Translate

L-1 Visa

L-1 Visa for Intra-Company Transferees

L-1 Visa may be available to foreign national employees of multinational or affiliate companies with entities doing business abroad (outside the U.S.) and in the U.S. that are employed in a managerial or executive capacity or have specialized knowledge.

[1] The Provision and Its Background

”Intracompany transferee” (L-1 for principal; L-2 for spouse or child)1 has become one of the most important of the nonimmigrant work classifications, at least in terms of usage. It allows organizations with operations abroad to shift certain of their personnel to the United States temporarily, even if the jobs they fill are not temporary in character.

For reasons that may help to explain some of its terms, Congress in 1970 added the ”L” classification which, as amended, reads as follows:

”subject to section 214(c)(2), an alien who, within three years preceding the time of his application for admission into the United States, has been employed continuously for one year by a firm or corporation or other legal entity or an affiliate or subsidiary thereof and who seeks to enter the United States temporarily in order to continue to render his services to the same employer or a subsidiary or affiliate thereof in a capacity that is managerial, executive, or involves specialized knowledge, and the alien spouse and minor children of any such alien if accompanying him or following to join him.”

The impetus for the new classification came mainly, but not exclusively, from large, multinational companies who found their ability to bring critical personnel from abroad severely limited as a result of the 1965 immigration amendments. Undoubtedly, as the Immigration and Naturalization Service (now replaced by the Department of Homeland Security, DHS) suggested, the L-1 status has also been used by smaller companies as a vehicle for the immigration of entrepreneurs.6 A reaction to this use may account only in part for INS rules and interpretations that may have seemed artificially rigid or narrow and that affected companies large and small.7 To restore the flexibility of the L-1 classification, Congress in 1990 amended its provisions to make them more accessible. At the same time, it legislated an analogous provision which entitles intracompany transferees who are managers or executives ”priority worker” status, i.e. a first employment-based preference, in the new permanent residence selection system.

The candidate for ”L” classification is ordinarily subject to the same provisions that govern nonimmigrants generally, in respect of the visa process, and concerning admission, extension, and change of nonimmigrant status. INS regulations establish rules for the initial visa petition, and for maintaining or extending ”L” status; regulations of the State Department govern the issuance of ”L” visas.14 These provisions, as interpreted administratively and in very few court decisions, are analyzed in other sections of this chapter. The analysis addresses the required relationship between the employer abroad and in the United States, the kind of work the nonimmigrant must have done and must do to qualify, how long he or she may continuously work in ”L” status, the one-year prior employment rule, and the procedures involved. The following outline may be useful both as a checklist in the typical case and an introduction to the central issues.

[2] The Employers: Their Relationship, Nature and Activities

[a] The Relationship Between the Employers

The L-1 nonimmigrant may enter the United States temporarily ”to continue to render his services to the same employer or a subsidiary or affiliate thereof… .” Either the employer abroad or the prospective employer in the United States may be the petitioner, assuming they are otherwise qualified.

There might only be a single employer if the nonimmigrant had physically worked abroad directly for a U.S. company (unattached to a division or branch) and was coming to the United States to continue that employment. By regulation, however, the petitioning employer must be a ”qualifying organization,” that is, a U.S. or foreign organization that will be ”doing business” both in the United States and abroad throughout the nonimmigrant’s L-1 assignment.

Typically, the L-1 employee will have worked abroad for a branch or division of a U.S. company or its main office, parent, subsidiary or affiliate. The petitioning papers must establish the relationship of the employer abroad as the same company to which the employee will render services in the United States, or its parent, subsidiary, or affiliate.

As for the parent-subsidiary relationship, it requires some stock ownership and control. A substantial minority block of shares could be controlling and create a subsidiary relationship if the balance of stock is widely distributed. The Service also recognizes the parent-subsidiary relationship resulting from a 50-50 joint venture if the co-venturer claiming to be a parent can exercise negative control by veto power.

The DHS ordinarily recognizes as affiliates only organizations in a sibling relationship, that is, sharing the same parent. It will also accept two companies as affiliates if both are owned by the same small group of stockholders, each stockholder owning approximately the same proportion of each company. The DHS will not recognize relationships built solely on contracts, interlocking directorships, or other non-equity links. A statutory exception also treats certain accounting and management consulting firms as affiliates if they market their services under the name of the same international coordinating organization.

[b] The Nature of the Employer

Each employer, both immediately before and after the employee’s entry in L-1 status, must be a ”firm or corporation or other legal entity … .” The entity, however, need not have a particular legal format. A sole proprietorship or partnership can qualify, as can a branch office.

Moreover, there is no nationality requirement. Neither the employer abroad nor in the United States must be a U.S. entity. If an organization, it may be registered or incorporated outside the United States; and there is no restriction on the citizenship or nature of the owners. The entity, for example, could be owned by a foreign government.

[c] Employer’s Activities

The organizations involved do not have to do business with each other or be engaged in international trade. Indeed, the statutory provision itself does not refer to business or commercial activity. The L-1 status is broad enough to include nonprofit organizations whose activities, for example, are primarily religious or cultural.

[3] The Employment Relationship; Managerial, Executive, Specialized Knowledge

[a] Employment

The statute clearly requires that for one of the three years immediately before the petition, the prospective L-1 has been continuously ”employed” and must be entering to continue to render services in a capacity that is executive, or managerial, or involves specialized knowledge. (Note, that in the case of an employee who meets the requirements for expedited processing under a blanket petition, the period of prior employment abroad is reduced to six months.) These requirements touch on several important issues.

During the pre-entry period it is not enough simply to be employed by a qualifying organization. The alien must meet the managerial, executive or specialized knowledge standard not only for the prospective L-1 employment, but for the previous period as well.

The DHS equates rendering services with employment. Its treatment of employment, however, is ambiguous. A general definition of employment elsewhere in the regulations specifies compensation as one of its distinct elements; yet the DHS has not rescinded the precedent holding that a non-salaried chairman can qualify as L-1. Moreover, while the services must be rendered on a significant, regular basis (mere attendance at meetings is not enough), the employee may divide executive work and responsibilities between a company in the United States and a related company abroad.

[b] As Executive, Manager, or Person of Specialized Knowledge

The terms ”executive,” ”managerial,” and ”specialized knowledge” are somewhat broader than earlier construed, as a result of the definitions enacted by Congress in 1990. To qualify as a manager under the current definition, the nonimmigrant may also be involved in the high-level management of an essential function as well as supervising the work of other supervisory, managerial, or professional employees. Executives direct the management of the organization or a major function or component of the organization, establish policies and goals of the organization, and exercise wide latitude in discretionary decision-making. ”Specialized knowledge” consists of the organization’s product or other interests and their application in international markets or an advanced level of knowledge of the organization’s processes and procedures.

By regulation and earlier interpretation, the specialized knowledge had to relate directly to the employer’s proprietary interest in a product, process, or program central to the organization’s activity, and not generally be available in the United States. Even before the statutory amendments of 1990, the ”proprietary” requirement was removed, as was the need for U.S. unavailability.

Although only employment as a manager or executive, or in a specialized-knowledge job is permissible, a nonimmigrant may qualify for the earlier year in one such capacity, and for the L-1 employment in another.

[c] Start-up or New Office

Some latitude in duties is permitted during a start-up operation, but approval to work in a new office is limited to one year. If the beneficiary is coming to the United States to open a new office, the issue of viability arises. The DHS in such a case requires proof of ownership and control, a lease or deed, and the financial resources to sustain the operation.

[4] Defining the Prior Year

The statute requires employment by the organization for one continuous year within three years before the application for admission. The DHS maintains that this period must be physically spent outside the United States. Time spent in the United States in proper immigration status on behalf of the company, will not interrupt the continuity of the employment abroad; but it cannot be counted toward the year. For example, someone hired by the company in Paris on January 1, and who is sent to New York on a B-1 visa for meetings on June 1, must leave the United States by June 30, if he or she is to qualify as the beneficiary of an L-1 petition to be filed February 1 of the next year.

[5] Temporary Intent and Residence; Dual Intent

Like the H-1 statuses, for example, the L-1 does not require the nonimmigrant to maintain a residence abroad. But neither may he intend to stay indefinitely or permanently.

To render the services in the United States, the nonimmigrant L-1 is permitted by statute to enter only ”temporarily.” The petition will therefore be denied if it appears that the petitioner intends to employ the beneficiary indefinitely. On the other hand, the employer may legitimately employ the L-1 temporarily, while planning to employ her permanently if and when it is legally permissible. The nonimmigrant may also intend to remain at the end of the authorized stay if she has meanwhile become a permanent resident. The approval of a labor certification or the filing of a preference petition is not itself conclusive evidence of a prohibited intent. And, L-1 beneficiaries are no longer subject to the ยง 214(b) presumption. Under State Department and DHS interpretations of the 1990 amendments, the question of whether the beneficiary properly seeks to enter ”temporarily” is reduced to whether he or she will adhere to the statutory limits of an L-1 stay imposed under the 1990 Act.

[6] The Five or Seven Year Limit

L-1 petitions are usually approved initially for three years, and extensions may be given in increments of up to two years, for a total of five in the case of an L-1 with specialized knowledge, and seven years for a manager or executive. Special rules determine whether the five years run when the L-1’s presence in the United States has been intermittent. The individual is not eligible for a new five/seven year cycle as an ”L” until she has been employed by the organization outside the United States for an aggregate of a year prior to readmission in such status.

[7] Green Card Application for L-1A manager/Executive
There is a specific classification in employment-based immigration, which is EB-1(c), a counterpart of L-1A visa.
The green card (Legal Permanent Residency) for the L-1A Manager/Executive requires a showing of all of the same evidence of the L-1A Manger/Executive visa petition. The main additional requirement is that the U.S operation be in existence for at least a year. The category is very popular because applicants can avoid the labor certification process, are applying in an immigrant Visa category that may not be retrogressed (backlogged) or less backlogged than others, they can have an ownership interest in the company and they can proceed to the green card relatively quickly. L-1B visa holders may also apply for a Green Card through the L-1 employer; however these workers will generally need to go through the Labor Certification process, exceptions may be available depending on specific job duties.
[8] Fee Schedule

Filing Fees (to the USCIS, for L-1visa only):

  • Basic Filing Fee: $320
  • Anti-Fraud Fee: $500
  • Premium Processing: $1,000

Legal Fee ( to our firm, for L-1visa only): $2,500 payable in 2 installments, of which $1,500 is payable at signing retainer agreement, and $1,000 payable at submission of petition package to USICS.
Federal Express Expenses: $100

Please note that we may charge higher amounts for legal fees if the case is likely to be complicated.

Translate »