Many multi-national companies have policies of international rotation of managerial level personnel to assure that all key personnel within the company have equal opportunity for career advancement when an appropriate position becomes open in any location around the world.
Cross-fertilization of ideas among high level employees and executives enhances a company’s competitiveness; exchanges of ideas often result in innovation that is essential to a company's reputation and development. A regular rotation of key personnel improves and ensures uniformity of service and procedure within the company at a global level.
When a multi-national company is developing a new market in another country, it may become necessary to have some employees with specialized knowledge work in the newly established office. The availability of an experienced employee with specialized and proprietary knowledge is often the determining factor in the success of the new office.
Large multi-national companies also need the flexibility to transfer their employees freely without being limited to any particular employee or any particular location.
The L visa was specifically designed to facilitate the needs of intra-company transfers by multi-national companies. Smaller and even start up companies can also take advantage of the L visa. However, since the USCIS (formerly the INS) will scrutinize L visa petitions filed by lesser-known companies more closely, professional consultation with an experienced immigration lawyer is strongly recommended these types of businesses.
L-1A visas are designed for intra-company executive transferees coming to work in the United States. The L-1A visa holders must have been employed in an executive or managerial capacity for the foreign company at an overseas location continuously for at least one year out of the past three years. Further, the L-1A holder must be coming to the U.S. to work for the U.S. company in an executive or managerial capacity.
L-1B category covers specialized knowledge personnel. An example of specialized knowledge personnel would be an individual who possesses proprietary knowledge about a company's product and who travels to the U.S. to impart his or her specialized knowledge to new U.S. employees.
Additionally, in both cases, the U.S. company and foreign company must be related in a specific way, such through a parent/subsidiary relationship or through an affiliated employer.
USCIS has provided a special set of procedures to be used by companies that are frequent users of the L-1 visa category or are large multi-national organizations. It is called "L-1 Blanket Petition Program." Under this program, the approved company need only receive one approval from the USCIS to transfer a certain number managerial, executive and professional employees.
Advantages of obtaining an L visa
The L nonimmigrant visa category is one of the most useful tools available to international companies who need to bring qualified foreign employees to the United States.
If a few basic requirements are met, the company can gain access to the many advantages of the L visa category.
1. Compared to E visa.
An E visa can also be used by international companies to bring their foreign employees to the United States, but an E visa is available only when the following three conditions are met:
a. A treaty must exist between the United States and the foreign country under whose treaty the E status is sought;
b. Majority ownership or control of the investing or trading company must be held by nationals of the foreign country under whose treaty the E status is sought;
c. Each employee or principal of the company who is seeking the E status pursuant to the treaty must hold citizenship of the country under whose treaty the status is sought.
At the present time, there are many countries that do not have such treaties with the United States. For those countries, an E visa is simply not available and an L visa might be a good alternative.
2. Compared to B visa.
Generally speaking, a B-1 visa can be used for some business activities, such as the opening of bank accounts, acts of incorporation, signing of contracts, and the like. A B-1 visa is particularly helpful during the inception stages of setting up a U.S. business.
However, a B-1 visa holder cannot work in the U.S. Unless another visa with employment authorization is obtained, employment is a violation of status, meaning when the business activity has advanced to such a degree that it constitutes local employment, the B-1 holder will be unable to fulfill such duties or risks violating status.
3. Compared to H Visa
An H visa is very similar to an L visa in many aspects, such as the limitation on the accumulated authorized period of stay and petition procedure. The major difference is that the employment privilege granted to an L visa holder, in theory, cannot be substituted by a U.S. worker. Therefore, an L visa holder is not required to be paid the prevailing wage for the position he or she assumes.
4. EB-1(c) category considerations
A specific employment-based immigrant preference category (EB-1(c)) was created for managers and executives who meet the L-1 standards and are interested in becoming lawful permanent residents (LPRs). These aliens are considered "priority workers" in the first preference, which is allotted 40,000 annual immigrant visas. Although L-1 status is not a prerequisite for immigrant benefits in this category, the immigrant petitioner’s prior L-1 status provides a stronger case for the EB-1(c) immigrant petition .
L visa holders do not have to maintain a foreign residence during their U.S. stay, and they may seek permanent residence and still maintain L status. Filing a petition for permanent residence status will not negatively impact L status.
Family members of the L-1 alien, classified in the L-2 category, may be granted authorization to work in the United States after filing for and being granted an Employment Authorization Document (EAD).
Basic Requirements for Obtaining L-1 Status
1. The employee must have worked abroad for the overseas company for a continuous period of one year during the preceding three years.
2. The company at which the employee fulfilled the work requirements must be related to the U.S. company in a specific manner, such as parent/subsidiary, sister companies with common parent.
3. The company must be a qualifying organization—one that is doing business in the United States and one other country throughout the entire period of transfer.
4. The employee must have been employed abroad in an "executive" or "managerial" position (L-1A) or a position involving "specialized knowledge" (L-1B).
5. The employee must be coming to the U.S. company to fill one of these capacities (Executive, Managerial, or Specialized Knowledge).
6. The employee must be qualified for the position by virtue of his or her prior education and experience.
7. The L-1 visa holder must intend to depart the United States upon completion of his or her authorized stay.
Some of these requirements are easy to meet and no extensive documentation is necessary especially when the employer is well known and well established. However, when the company is small or just begining, please be prepared to provide extensive documentation to establish eligibility for the L visa. The professional services of an experienced immigration attorney are therefore strongly recommended.
Requirement Details I: Qualifying entities
Requirement 2 of the previous list requires that the overseas entity be related to the U.S. company in a specific manner. Here we would like to discuss the types of business structures are recognized as acceptable qualifying relationships.
i. Majority ownership
If a foreign entity owns more than 50% of a U.S. entity, the foreign entity is a majority owner of the U.S. entity. The same rule applies when the U.S. entity is the parent and owns more than 50% of the foreign entity. In both cases, the U.S. business is qualified to petition under the L visa category.
ii. Sister Entities
If both the foreign entity and the U.S. entity have the same majority stock owner (owns more than 50% in both companies), the U.S. entity is qualified for L-1 application.
iii. Less than majority ownership, but Control
If the parent entity owns 50% or less of the subsidiary, or either of the affiliates, the U.S. entity still may be qualified to apply for L visas if the parent company has actual control over the subsidiaries.
Example: Chinese company A holds 49% of the stocks of U.S. company B. The rest of the stocks are divided among another ten investors, none of them holding more than 10%. B will be qualified for L visa application because company A has actual control over company B.
iv. Branch Office
If a foreign entity has a branch office in the U.S. or vice versa, the U.S. entity qualifies. However, the branch office must conduct real business and not serve only as an agent or representative.
Requirement Details II: Qualifying Position
I. Managers and Executives
The L-1A visa beneficiary should hold a managerial or executive position. Generally speaking, managerial capacity means an assignment with an organization in which the primary duties of the employee include:
(1). Managing the organization, department, subdivision, function or component;
(2). Supervising and controlling the work of other supervisory, professional or managerial employees, or managing an essential function within the organization ro department or subdivision of the organization;
(3). The authority to hire and fire or recommend personnel actions (if other employees directly supervised), or manages an essential function within the organization or department or subdivision of the organization;
(4). Exercising direction over day-to-day operations of the activity or function
So, first-line supervisors are usually not considered to be managers for L-1A visa purposes unless the employees they supervise are professionals. For example, a junior supervisor in an accounting firm may qualify under this definition because the employees they oversee are professional accountants.
II. Specialized Knowledge Staff
The L-1B visa category is designed for staff with special knowledge of a company product, service, research, equipment, techniques, management, or an advanced level of knowledge about the processes, procedures or other interests of the business.
When the special knowledge is about company products, services and so on, the prospective transferee must be more than just a skilled worker. He/she must have knowledge that is not readily available in the U.S. labor market
Obtain and Maintain an L Status
For L-1 Visa holders, requests for admission to the United States are made at the border upon arrival at a U.S. port of entry. The immigration officer has the authority to deny admission to a foreign national even if a visa has been issued. However, such denial rarely occurs in the case of L-1 aliens.
The alien seeking admission must have a valid passport with the L visa stamped. The alien should also have the approval notice of the L-1 petition, a copy of the petition, and supporting letter.
If the immigration officer decides to admit the visa holder, the officer will place a stamp in the passport noting the admission and the period of authorized stay. The immigration officer will also annotate Form I-94. After that, the L visa holder obtains L Status in the United States for the authorized period.
To maintain valid L status, the alien may not engage in unlawful employment, which means the alien not only has to work for the employer/petitioner, but also has to work in the capacity specified in the petition letter, such as managerial, executive (L-1A) or special knowledge employee (L-1B).
An alien in L status may attend an academic institution without explicit approval from the USCIS (formerly INS) if such enrollment is limited and incidental to the authorized employment.
An alien in L status needs to file an extension request with the USCIS when the authorized stay is about to expire, failure to do so will jeopardize his/her stay and future reentry into the United States.
From L Status to Green Card
A specific employment-based immigrant preference category (EB-1(c)) was created for managers and executives who meet the L-1 standards and are interested in becoming lawful permanent residents (LPRs). These aliens are considered "priority workers" in the first preference, which is allotted 40,000 annual immigrant visas. Although L-1 status is not a prerequisite for immigrant benefits in this category, it provides a stronger case when the immigrant petitioner was in L visa category previously. A labor certification is not necessary for an EB-1(c) alien petitioner.
For an alien in L-1B status, he/she may apply for a Green Card as a skilled worker, which requires an approved labor certification. If circumstances allow, he/she may apply under the EB-1(a), EB-1(b), or NIW categories, for which a labor certification is not required.
Of course, other channels for obtaining a green card, such as family based immigration, are also available to alien in L-1 status.
L-1 visa FAQ
Q: Does the employer need to get a prevailing wage request or pay a certain amount to the transferee?
A: No. A prevailing wage request is not required for an L-1 visa and there is no requirement for the amount an employer must pay the transferee. However, the wage paid to the transferee needs to be considered reasonable when factoring in the structure and size of the individual corporation and the business practices of the market.
Q: May I change my work location when I’m in L-1 status?
A: Yes, if you are taking a position with similar duties with the same employer. But you must file an amendment petition and notify the USCIS of this change.
Q: May I change my job to work for another U.S. affiliate of the same overseas corporation?
A: No. If you are going to work for another company, the other affiliate needs to file an independent L-1 petition for you. You can’t use your original L-1 to work for this new company.
Q: I’ve just had my L-1 visa approved. I want to know what is the maximum time that I can use my L-1 visa to work in the U.S.?
A: It depends on the type of L-1 visa you received. For the L-1A visa, the maximum duration is 7 years; and for the L-1B it is 5 years. The initial approval is usually 3 years or less, so you may need to apply for a renewal before your current visa expires to allotted the visa category.
Q: My company is considering an L-1A visa for me to work at our U.S. branch, and asked me to provide proof of my educational qualifications. I am worried because I never went to college. Am I still qualified for an L-1A visa? Does my lack of a bachelor’s degree make my case weaker?
A. You can still qualify without a Bachelor’s degree as long as you met all the requirements for the L-1A visa. There is no minimum education requirement for L-1A visa applications. Education is only one of the factors the USCIS will consider when determining whether you have the ability to perform as a manager.
Q: My company is opening a new branch office in the U.S., and the board wants to send me there to supervise our operations. We are considering the L-1A visa, but it seems hard for us to prove that my position there is qualified since we currently only have one employeein that new branch. Can I still use the L-1A visa?
A: Yes. Your case falls into the category of new office, which has a specific set of rules.
The new office provision is designed for those offices which are, at the time of the filing, not fully established or able to support the services of a full-time manager or executive. Instead of proving that the relevant positions exist, the new office only needs to provide a lease for its office as evidence of a secured office location and a business plan to show that the company will develop in the future to a degree that it can afford such a managerial position.
A downside, however, is that the initial duration for a new office L-1A visa is only 1 year.
Q: May I apply for permanent resident status if I am an L-1B holder?
A: Yes, but you may need to apply under a different category than an L-1A holder. This category may require a labor certification.
Q: I’m currently in L-1A status, but recently filed my I-485 adjustment of status based off my approved EB-1(c) petition. Can I travel abroad while my application for adjustment of status is pending without losing my L status?
A: Yes. If your L visa is valid, you may use it to renter the U.S. You will remain in L status when you return.
If your L visa expires during your traveling period, you may apply for a new L visa overseas and use your new visa to reenter the U.S. in L status, provided you are returning to the same employer.
Otherwise, you will need to apply for advance parole documents to ensure that your adjustment of status is not considered abandoned. If you use advance parole to reenter, however, you will no longer be in L status and will be in parolee status.
Q: What is a “blanket application?”
A: This is a procedure designed specifically for businesses that are frequent users of L-1 visa. Large multi-national corporations with 3 or more branches, subsidiaries or affiliates are qualified if they have one or more of the following:
A combined U.S. annual sales of $ 25 million;
A U.S. workforce of 1,000; or
received approval of at least 10 L petitions in last 12 months.
In order to petition using a blanket application, the petitioner must obtain approval from the service center and then attach I-171C demonstrating the blanket approval when filing the I-129 Form, Petition for a Nonimmigrant Worker. Once the Blanket is approved, the company may transfer people to the U.S. on short notice without having to file a separate petition for each employee.
L-2 VISAS: DESCRIPTION
The L-2 visa is issued to the L-1 holder's spouse and children under twenty-one years of age. Holders of L-2 are considered to be the dependents of L-1 holders. L-2 holders may be entitled to enter and remain in the United States for the duration of the L-1 holder's authorized duration of stay. Their duration of valid stay is the same as that of the L-1 holder. L-2 holders are permitted to attend school on their L-2 status and they do not have to be full-time students. L-2 holders are not permitted to work unless they are independently qualified and thereby eligible for a classification in H-1B or other work authorization classification. L-2 can be changed into H-1, F-1, B-1, B-2, L-1 and other non-immigrant status. Moreover, L-2 holders may apply for immigrant visas.
