L-1 Visa Information Sheet

L-1 VISA INFORMATION SHEET

L-1 CATEGORY GENERALLY

The L nonimmigrant visa category is used by international companies to transfer foreign employees to the United States for a limited amount of time. The category is split into two classifications: L-1A (for executive and managerial positions) and L-1B (for specialized knowledge personnel). For both types, the maximum initial period of stay is three years. Extensions may be given in increments of up to two years with a maximum total stay of seven years for L-1A and five years for L-1B. H and L time in the U.S. will be combined when determining whether or not an alien has reached his/her maximum period of stay in those categories. Time spent outside of the U.S. does not count toward the maximum period of allowable stay and may be “recaptured” as necessary. L-1 employees must be directly employed by the international company, usually as measured by the degree of control exerted by the company over the worker’s job.

Family members (spouses and unmarried children under the age of 21) of the L-1 nonimmigrant are entitled to enter the country under the L-2 nonimmigrant classification. Family members are admitted into the country for the same period of time as the principle (L-1) family member. Once children turn 21 or marry, they are no longer eligible to remain in the United States in the L-2 status. L-2 family members can undertake courses of study while under that category. L spouses are able to apply for employment authorization (EAD), but they cannot begin working until the EAD is received.

BASIC REQUIREMENTS FOR OBTAINING L-1 STATUS

 The employee must have worked abroad for the overseas company for a continuous period of one year in the preceding three years. Part-time employment, even for a continuous year, is not sufficient, unless it is at several of the foreign company’s affiliates and the total hours worked amounts to full-time. o Once the petition is approved, the L-1 worker does not need to work solely in the U.S.—it is fine if their employment is divided between the U.S. and foreign company while they are residing abroad and they may be paid by either company.  The overseas company must be related to the U.S. company in a specific manner and be a “qualifying organization” (see THE COMPANY).  The employee must have been employed abroad in an executive or managerial position or a position involving specialized knowledge.  The employee must be coming to the U.S. company to work in an executive, managerial, or specialized knowledge capacity (see L-1A and L-1B CATEGORIES) o The employee need not perform the same services in the U.S. as he or she did abroad, e.g. a person with “specialized knowledge” abroad can work in the U.S. in a managerial position.  The L-1 category does allow dual intent (the foreign national employee pursue permanent residency in this status without impact on his/her status or ability to travel internationally and reenter the U.S.). THE COMPANY

The foreign employer of the L-1 employee and the U.S. employer must be related to each other in a particular manner (as affiliates or in a parent-subsidiary relationship). Simply having a contractual relationship between two companies is not sufficient. The basic rule is that one of the transfer companies must have “effective control” over the other, or both must be “effectively controlled” by the same third party. The acceptable corporate relationships between the U.S. employer and the employer abroad are:

 The U.S. and foreign companies are both branch offices of the same corporation.  The U.S. company owns more than 50% of the overseas company or vice versa.  The U.S. and foreign companies are both majority-owned (>50%) by the same third party. o USCIS requires that the same group of shareholders in the third party must own a controlling interest in each business, and each must hold approximately the same proportion within the group. The shareholders of each individual transfer company, however, do not have to be identical for L-1 affiliation to occur.  The U.S. company is a joint venture (50% owned by each of two companies) or is one of the joint venturers (50% owner) of the foreign company. o Transfers are not permitted from one joint ventrurer to the other, because these companies would not have ownership interest in each other.

L-1A CATEGORY

The L-1A category is reserved for those working in an executive or managerial capacity abroad or who will also be working in one of those capacities while in the U.S. There are many advantages to this classification, but USCIS has very strict rules defining executive or managerial positions for this classification. In general, the employee would have to prove that s/he:

 Manages the organization, or a department, subdivision, function, or component of the organization;  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 of the organization;  Has the authority to hire and fire or recommend those as well as other personnel actions (such as promotion and leave authorization) if another employee or other employees are directly supervised, or, if no other employee is directly supervised, functions at a senior level within the organizational hierarchy or with respect to the function managed; and  Exercises discretion over the day-to-day operation 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. “Priority Workers”

Those holding L-1A classification may have an advantage if the employer decides to sponsor them for a green card (permanent residency). They have the option of filing under the first employment based preference for “priority workers.” Those qualifying for this category would be exempt from the usual labor certification requirement and would likely not have to wait for visa number availability as many other employer-sponsored workers may.

L-1B CATEGORY

The L-1B category is reserved for those employees who have “specialized knowledge” within their industry. In order to consider a worker’s knowledge specialized, it must be somehow different from the knowledge generally found within the field (e.g., uncommon or advanced). It is irrelevant whether or not there are U.S. workers able to perform the L-1’s potential duties; it only matters that the L-1’s knowledge is not common throughout his/her industry. Examples of possible “specialized knowledge” are that the worker:

 Possesses knowledge that is valuable to the employer=s competitiveness in the marketplace  Is qualified to contribute to the U.S. employer=s knowledge of foreign operating conditions as a result of special knowledge not generally found in the industry  Has been utilized abroad in a capacity involving significant assignments which have enhanced the employer=s productivity, competitiveness, image, or financial position  Possesses knowledge which normally can be gained only through experience with that employer  Possesses knowledge of a product or process which cannot be easily transferred or taught to another individual.

Be aware that, although the definitions of “specialized knowledge” are liberal (and can be interpreted as such), L-1B requirements can also be (and usually are) interpreted much more narrowly by USCIS, especially during poor economic times. The USCIS is especially strict concerning potential L-1B workers that may be frequently hired out to unrelated third party businesses and special rules and scrutiny apply in those circumstances.

GENERAL PROCEDURE

The employer file a petition with USCIS and submit that with proper documentation and filing fees. Documentation includes a support letter form the company (including a description of the job and company, a description of the ownership and control of each entity, and affirmation that the employee will leave the U.S. at the end of the authorized period of stay), evidence of the qualifying corporate relationship (parent/subsidiary, affiliate, etc.) between the U.S. petitioner company and the employee=s foreign employer, organizational charts of both the petitioning U.S. company and the employee’s foreign employer showing the employee’s role in both organizations, and company literature describing the company’s business activities and/or organizational structure. Possible extra documentation may include: o Large companies: Most recent annual report, SEC filings o Small companies: records of stock ownership, profit and loss statements, tax returns, articles of incorporation, by-laws, and minutes of board meetings o Partnerships: copy of partnership agreement, anything that shows that both entities are owned and controlled by the partnership o Proprietorships: license to do business, record of registration with IRS as an employer, business tax returns

Additional documentation is required for start-up companies which have been in operation for less than one year.

It is recommended that the petition be filed four to six months before the services of the worker are required. There is a standard government filing fee of $325 and an Anti-Fraud fee of $500 for an initial L-1 application. Additional fees may apply in various circumstances, including a $1,225 premium processing fee if that service is requested (cuts initial processing time to 15 days). If the petition is approved while the employee is abroad, the employee must bring the approval notice to his/her U.S. consulate abroad to obtain a visa (Canadian employees need not get a visa for entry). A visa is necessary to enter the U.S.; the approval notice alone is not enough to grant the employee entrance into the U.S.