U.S. IMMIGRATION SYSTEM | NON-IMMIGRANT
| L1
The L-1 visa category was established to facilitate
the transfer of foreign personnel of an international company into
the United States. The L-1 visa is not limited to large multinational
corporations but may be used by companies of any size who have overseas
personnel that qualify for transfer in this category. Furthermore,
for management and executive employees, coming on an L-1 visa may
be consistent with a faster route for obtaining Lawful Permanent
Residence in the United States than the cumbersome Labor Certification
process.
L-1 visas are divided into two categories: L-1A visas
for intracompany transferees who will be working in an executive
or managerial
capacity;
and L-1B visas for intracompany transferees who will be working
in a specialized knowledge capacity. Both L-1 categories are eligible
for an initial approval of up to three years. L-1A status may be
extended twice in two-year increments, creating a total seven (7)
year maximum limit on L-1A status. L-1B status may be extended
once
for a two-year increment, creating a total five (5) year limit
on L-1B status. (There is no provision for extending L-1 status beyond
these limits as there is provision for the 6-year limit on H-1B
status
under the American Competitiveness in the Twenty-First Century
Act, commonly called “AC21”. These 7 and 5 year limits do
not apply to certain “commuter” L-1 workers who spend
less than 50% of each year in the United States.)
Qualifying Relationship
The foreign worker who seeks to be sponsored for an L-1 visa is
referred to as the “intracompany transferee.” For a US employer
to sponsor an intracompany transferee, the US employer must show
it has one of several designated relationships with the intracompany
transferee’s employer overseas. The overseas employer must
be a “qualifying organization,” which means it must
be related to the US employers as a parent company, subsidiary
company, affiliate company or a branch office.
A “parent” is a firm, corporation, or other legal entity
which has subsidiaries. A “subsidiary” is a firm, corporation,
or other legal entity of which a parent owns, directly or indirectly,
more than half of the entity and controls the entity; or owns, directly
or indirectly, half of the entity and controls the entity; or owns,
directly or indirectly fifty percent of a 50-50 joint venture and
has equal control and veto power over the entity; or owns, directly
or indirectly, less than half of the entity but in fact controls
the entity. An “affiliate” is one of two subsidiaries,
both of which are owned and controlled by the same parent or individual
or one of two legal entities owned and controlled by the same group
of individuals, each individual owning and controlling approximately
the same share or proportion of each entity. A “branch” is
an operating division or office of the same organization housed
in a different location.
One Year of Full-Time Employment Overseas
Another key requirement is that the intracompany transferee must
have actually worked for a “qualifying organization” for
at least one full year within the past three year period leading
up to the filing by the US employer of the L-1 petition with
USCIS. The one year of employment does not need to be a continuous
unbroken
year, but it must be at least one year in the aggregate (with
all the aggregated employment occurring during the past three
years).
Any time spent in the United States (for instance, as a B-1 business
visitor permitted to attend meetings at the prospective US employer,
but not permitted to work for that US employer) cannot be counted
towards accruing the one year of full-time employment abroad
with a qualifying organization.
The one full years’ employment
issue arises because of instances where a US employer may have
identified a foreign worker living and
working overseas for an unrelated company. This is often a foreign
worker whom the US employer would like to immediately bring to the
United States but for whom an H-1B visa is unavailable or inapplicable
(for example, to fill a position that is highly technical but nonetheless
does not require at least a Bachelor degree). If the foreign worker
joins a qualifying organization and begins working for that qualifying
organization to build up to one year of full-time employment, any
time spent visiting the US employer will not count towards accruing
one full year of work abroad to permit filing of an L-1 visa petition.
“Capacity” of
Employment Overseas and in the United States
The intracompany’s work overseas must be executive or managerial
or specialized knowledge in nature. When coming to the United States,
the intracompany’s new position in the United States must
also fit within one of these three specific categories of being
executive
or managerial or specialized knowledge in nature. It is most common
that a transferee who works in one of these three capacities overseas
will continue to work in that same capacity in the United States.
This is not required, however. For instance, it is permitted for
a transferee who worked in a specialized knowledge capacity overseas
to be promoted to a management position in the United States. And
vice versa, a transferee working in a managerial capacity overseas
might be coming to a small office in the United States and working
in a specialized knowledge capacity. What is critical to approval
is that both the work overseas and the work to be performed in
the United States fit within one of the three following recognized
capacities.
Executive Capacity
Working in an executive capacity refers to an assignment within
an organization in which the transferee primarily: a) directs
the management
of the organization or major component or function thereof; b)
established the rules and policies of the organization, components,
or functions; c) exercises wide latitude in discretionary decision-making;
and d) receives only general supervision or direction from higher
level executives, the Board of Directors, or stockholders of
the organization.
Managerial Capacity
Working in a managerial capacity refers to an assignment within
an organization in which the transferee primarily a) manages
the organization
or a department, subdivision, function, or component or b) supervises
and controls the work of other supervisory, professional, or
managerial employees, or manages an essential function within
the organization,
or a department or subdivision thereof; c) has the authority
to hire and fire or recommend other personnel
actions (promotion,
leave authorization, etc.) if another employee or other employees
are directly supervised; if no other employee is directly supervised,
functions at a senior level within the organizational hierarchy
or with respect to the function managed; and d) exercises discretion
over the day-to-day operations of the activity or function for
which the employee has authority. A first-line supervisor is
not considered to be acting in a managerial capacity merely by
virtue
of the supervisor’s supervisory duties unless the employees
supervised are professional.
Specialized Knowledge Capacity
Working in a specialized knowledge capacity refers to an assignment
within an organization in which the transferee primarily employs
advanced knowledge of the company’s product, service, research,
equipment, techniques, management, or other interests and their
application in international markets, or an advanced level of
knowledge or expertise of the employer's processes and procedures.
New
Offices
L-1 visa petitions may be filed by established, existing US employers
or may be filed by a US employer that is a “new office” of
a qualifying organization overseas. “New office” L-1
petitions require additional proof to ensure that sufficient premises
have been secured in which the new company and the intracompany
transferee will operate, with a detailed business plan as to the
goals for the new office in its first year. New office L-1 petition
approvals are limited to one year, so that USCIS may assess at
the time of seeking extension of status (for an additional two
years) whether the new office has in fact been doing business,
what the financial status of the new office is, and what, if any,
staffing has been added during that first year.
“Dual Intent” Permitted
for L-1 Visa Applicants
Most applicants for non-immigrant (temporary) visas such as B-1,
F-1, J-1, R-1, etc., must intend to return to the home country
at the completion of the purpose of the temporary trip to the United
States. Having “immigrant intent” is the most common
ground of refusal for non-immigrant visas. (The law presumes that
every foreign citizen who enters the United States intends to “immigrate”,
i.e., to stay permanently, and therefore puts the “burden
of proof” onto the non-immigrant visa applicant to prove
intent to return to the home country at the end of the temporary
stay.)
However, similar to the H-1B visa, the L-1 visa permits “dual
intent.” This simply means that while an L-1 visa applicant
is expected to intend to return to the home country if/when the temporary
L-1 assignment ends, it is permitted for the L-1 worker to also have
the intent to stay permanently in the United States if able to do
so legally through either employer sponsorship or other legal avenue.
Thus, an L-1 visa may not be denied by a US Embassy or Consulate
solely on grounds that the US consular officer believes the L-1 visa
applicant intends to seek Permanent Resident status in the United
States. (This rule extends through the Permanent Residence process
into the final stage, permitting L-1 workers who have filed an I-485
application for permanent residence to continue to use their L-1
visa to travel without obtaining “Advance Parole” travel
papers first.)
Spouses & Children
/ Work Authorization for Spouses
Dependents (spouses and unmarried children under age 21) are permitted
to come to the United States on L-2 visas for the same length
of time as the L-1 principal worker. It should also be noted
that,
unlike the H-4 visa for dependents of H-1B workers, spouses of
L-2 workers are permitted to apply to USCIS for an Employment
Authorization Document (EAD card). The EAD card allows the L-2
spouse to obtain “open
market” employment with any employer in the United States
for the duration of time the L-1 principal worker continues to
maintain L-1 status. Children are not permitted to apply for
EAD cards based on L-2 status.
Possible Permanent Residence without
Labor Certification
If an L-1A intracompany transferee has worked abroad in an executive
or managerial capacity (but not in a capacity of only specialized
knowledge) and works or will work in an executive or managerial
capacity in the United States, the US employer may file a “Priority
Worker” I-140 Immigrant Petition. The advantage of filing
an I-140 in this “Multinational Executive or Manager” category
is that no Labor Certification is required. While processing of
these types of I-140 petitions is still slow, being able to bypass
the Labor Certification process reduces the overall length of the
Permanent Residence process. It goes without saying that USCIS
closely scrutinizes such I-140 petitions to ensure that approval
is limited to only those transferees who indeed have worked/will
work in an executive or managerial capacity both abroad and in
the United States. Transferees whose facts support only L-1B specialized
knowledge worker approval generally do not qualify for this type
of I-140 and must first be sponsored in a Labor Certification case
through the Department of Labor before an I-140 petition can be filed.
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