L-1 Visa: Intracompany Transferee

The L-1 Intracompany Transferee Nonimmigrant Visa

Our attorneys have a broad range of experience representing both entrepreneurs and employers in using the L-1 nonimmigrant visa classification to transfer employees from a related entity abroad to work in the United States. We advise clients about whether foreign employees qualify for the L-1A (Executive or Manager) or the L-1B (Specialized Knowledge) classification. We also counsel organizational and institutional clients on the L-1 petition and blanket application process, how they can obtain an L Blanket certification, and how their foreign workers can acquire lawful L-1 status to work on a temporary basis in the United States.

Benefits of the L-1 Visa

• The L-1 visa is a “dual intent” visa, meaning the visa holder can file an employment-based immigrant petition and Adjustment of Status (AOS) application while in the U.S. under valid L-1 status. This visa is thus, a great pathway to Lawful Permanent Resident (LPR) status.
• Allows a foreign company, which does not yet have an affiliated office in the U.S., to establish a U.S. branch. Please contact our attorneys for guidance about “New Office” requirements.
• Spouses of L1 visa holders (L2 visa holders) are allowed to work in the U.S. without restriction and without the requirement of any independent employment authorization document.

General Requirements for L-1 – Intracompany Transferees

The L-1 nonimmigrant visa classification is used to employ intracompany transferees in the U.S. An intracompany transferee is a foreign worker who:

• Within three years before seeking to enter the U.S. in L-1 status, has been employed abroad continuously for at least one year by:
  • A firm, corporation, or other legal entity; or
  • A parent, branch, affiliate, or subsidiary of the firm, corporation, or other legal entity, and
• Is seeking to enter the US to provide services:
  • To the same employer or a parent, branch, affiliate, or subsidiary of the employer abroad, and
  • In a managerial or executive capacity or one that involves specialized knowledge.

The L-1 visa classification requires an employer to file a petition to sponsor a worker for L-1 status. L-1 petitions for individuals are typically filed with the USCIS in the U.S. In other circumstances, employers may obtain blanket certification to transfer qualifying employees without an individual petition made to USCIS. In these instances, our attorneys will submit a blanket petition directly to a consular officer.

Several criteria must be satisfied to obtain L-1 sponsorship and classification:

• The petitioner must be a qualifying organization,
• The U.S. job position must be eligible,
• The foreign worker must be eligible, and
• Either:
  • The individual L-1 petition must be filed and approved by the USCIS (unless the petitioner has an approved L-1 blanket petition), or
  • The petitioner has an approved L Blanket certification, and the worker may appl directly at a U.S. embassy or consulate for an L-1 visa.

1.  U.S. Employer’s Relationship to the Worker’s Foreign Employer
   The L-1 visa category applies to foreign employees of qualifying organizations who temporarily enter the U.S. to continue employment with a parent, branch, subsidiary, or affiliate of their overseas employer in a managerial, executive, or specialized knowledge capacity.A “qualifying organization” is defined as a U.S. or foreign corporation, or other legal entity, which is currently, and intends to, continue doing business in the U.S. and at least one other country for the duration of the foreign employee’s stay in the U.S. In this context, “doing business” is construed as an organization that has employees that regularly, systematically, and continuously provides goods or services. The mere presence of an agent or office of the qualifying organization in the U.S. or abroad will not be sufficient to satisfy the “doing business” requirement.Special Note for Entrepreneurs: When establishing a new office, defined as one that is doing business in the U.S. for less than 1 year, entrepreneurs must satisfy additional requirements to establish the U.S. office is a “qualifying” organization. Our attorneys will counsel you on all appropriate documentation to submit to satisfy the “new office” requirements. A U.S. employer that is a new office is subject to more stringent requirements than an office that has been doing business in the U.S. for one year or more when petitioning for an L-1 worker.
2. The Nature of L-1 JobsL-1 jobs fall into three categories:
   • (1) Executive,
   • (2) Manager, or
   • (3) Positions involving Specialized Knowledge.
     Therefore, when petitioning for an L-1 visa, the company must demonstrate that the foreign worker will temporarily enter the U.S. to continue to work in an executive or managerial capacity (L-1A) or in a position that involves specialized knowledge (L-1B). In addition to the job itself, the foreign worker’s qualifying experience must also be derived from a job that is executive or managerial or involves specialized knowledge.We understand that USCIS officers reviewing L-1 petitions give great weight to the U.S. employer’s statements describing the job to determine whether the job qualifies as executive or managerial or involves specialized knowledge. Corporate clients, therefore, must include detailed job descriptions that clearly reflect the authority or responsibility of the foreign worker. For our corporate clients, we draft a comprehensive Company Support Letter that avoids simply reciting generic duties and responsibilities. We also counsel on additional evidence documenting the worker’s qualifications, particularly for L-1A functional managers or L-1B specialized knowledge workers, as USCIS may require.
3. L-1A vs. L-1B Classification
   L-1A workers are eligible for certain benefits not available to L-1B workers. L-1A workers may remain in the U.S. for a longer total period (7 years vs. 5 years). In addition, some L-1A workers may qualify for a corollary green card category for multinational managers and executives. Our attorneys are prepared to file under the EB-1C Multinational Executive or Manager Immigrant Visa category if your company’s long-term goal is to sponsor an L-1A worker on a permanent basis.L-1A Classification: Executives and ManagersUnder the Immigration and Nationality Act:Executives are individuals who do all the following:
   1. Direct the management of either:
      • The organization itself, orA major component or function of the organization.
      Set the goals and policies of the organization, component, or function.Exercise wide latitude in discretionary decision-making.Receive only general supervision from higher level executives, the board of directors, or shareholders of the company.
   Managers are individuals who do all the following:
   1. Manage the organization or a department, subdivision, function, or component of the organization.Supervise and control the work of other professional, managerial, or supervisory employees.Have the authority to either take or recommend personnel actions, such as hiring, firing, promoting, or authorizing leave.Exercise discretionary authority over day-to-day operations.
   Functional managers, a subcategory of managers, are individuals who do all the following:
   1. Manage an essential function of the organization.Operate at a senior level within the organizational hierarchy or the function managed.Exercise discretion over the day-to-day operations of the function over which the employee has authority.
   Managers must carry out the planning, organizing, directing, and controlling what they manage, whether it is a division, department, or function of the US employer. In practice, under the L-1 definitions, an executive or manager:
   • Operates at a high level of authority.Spends most of their time on policy or operational management.
   The L-1B Classification: Specialized Knowledge WorkersU.S. employers may transfer foreign nationals who possess specialized knowledge to the United States. A foreign worker serves in a capacity involving specialized knowledge if the worker has a special or advanced knowledge of the employer’s products, processes, procedures, methodologies, frameworks, or projects.The regulations governing L-1B visas further explain that specialized knowledge means either:
   • Special knowledge of the U.S. petitioning organization’s product, service, research, equipment, techniques, management, or other interests and its application in international markets.An advanced level of knowledge or expertise in the U.S. petitioning organization’s processes or procedures.
   Adjudicators review L-1B petitions on a case-by-case basis, evaluating all evidence presented. Statements alone that the foreign worker’s knowledge is different from that held by others is insufficient. As such, our attorneys are prepared to advise your business about how to present the foreign worker’s specialized knowledge to USCIS. We will develop a strategy to communicate how his or her knowledge is not widely held in the industry, but rather, knowledge of proprietary interest to you and your business. We will draft the documents necessary to demonstrate the worker has knowledge or experience that is significantly different from that held by similarly employed workers in the same industry. It is important that you articulate how the foreign worker’s knowledge is different from the general or basic knowledge held by others. U.S. Petitioning employers must articulate how that knowledge is different. Our lawyers have the knowledge and experience preparing a wide variety of documentation to satisfy these requirements.The L-1B Classification Using a Blanket Petition: Specialized Knowledge ProfessionalsCompanies that apply for L-1B specialized knowledge classification using a blanket petition must qualify as a specialized knowledge professional. A specialized knowledge professional is an individual who has specialized knowledge as defined by USCIS regulations and also is a member of the professions as that phrase is defined by the Immigration and Nationality Act (INA). The INA defines “profession” as:
   • Architects,Engineers,Lawyers,Physicians,Surgeons, andTeachers in elementary or secondary schools, colleges, academies or seminaries.
   Specialized knowledge workers who are not also professionals cannot utilize the blanket petition.3. Qualifications of the L-1 WorkerForeign nationals employed by a qualifying entity abroad for at least one continuous year out of the immediately preceding three years may be eligible to come to the U.S. temporarily to work in L-1 status. Travel to the U.S. during the qualifying period does not interrupt the continuity but may not be counted toward the one year of required qualifying experience. The employment abroad must have been as an executive or manager or in a specialized knowledge capacity.To satisfy the 1-year period of experience abroad:
   • The L-1 beneficiary must be physically outside the U.S. during the required one continuous year of employment. *Note: Brief trips to the U.S. do not break the continuous 1-year requirement, but it also will not count towards the one year of time abroad.The petitioner and the beneficiary must meet all requirements, including the one year of foreign employment, at the time the petitioner files the initial L-1 petition.
   New Office RequirementsIf you are an entrepreneur seeking to open an office in the U.S., it is important to satisfy additional requirements for a New Office. L-1 petitions for new offices require additional evidence that includes the following:
   • Evidence the employer has sufficient physical premises to house the new office, such as a lease or deed and photographs.
   If the L-1 beneficiary is coming to the U.S. office ad a Manager or Executive, the company must provide documentation evidencing:
   • The employee has been employed in an executive or managerial capacity for 1 continuous year in the 3 years preceding the petition filing with the USCIS,The U.S. job offered to the foreign worker involves executive or managerial authority over the new operation, and1 year after the petition is approved, the U.S. operation will support an executive or managerial position meeting the requirements of all L-1 petitions from evidence of the proposed U.S. operation, organizational structure, financial goals, the size of the U.S. investment and the financial ability of the foreign entity to support the U.S. business, and the organizational structure of the foreign entity.
   If the L-1 beneficiary is coming to the new US office in a specialized knowledge capacity, the company must provide documentation evidencing:
   • The US entity meets the definition of a qualifying organization; andThe petitioning employer has the financial means to pay the beneficiary and support the US business.
   4. Acquiring L-1 Status
   The L-1 petition must be approved before the foreign worker can acquire L-1A or L-1B status. If the worker is outside the U.S. when the petition is filed and approved, the foreign worker must:
   • Use the L-1 petition approval notice to apply for an L-1 visa in the foreign worker’s passport,
   • Travel to the U.S. where the foreign worker is:
     • Inspected by a Customs and Border Patrol (CBP) officer, and
     • Admitted in L-1 status.
     If the worker is in the U.S. in a nonimmigrant status that permits a change of nonimmigrant status, the worker is in valid L-1 status once the L-1 petition and change of status has been approved.If the worker is already in the U.S. in valid L-1 status and requesting an extension of nonimmigrant status, the worker’s valid L-1 status continues after approval of the new L-1 petition. The worker may also continue working for the organization, and retain valid employment authorization, while they L-1 extension is pending, if properly filed.