L-1 VISAS: SPECIALIZED KNOWLEDGED IMMIGRATION MADE EASY

The L non-immigrant visa category is one of the most useful tools available to international companies who need to bring qualified foreign employees to the United States. There are three types of transferees that can come to the U.S. on an L-1 visas:  (1) A manager, executive or employee with “specialized knowledge” can come to the U.S. to open a new office on behalf of the company abroad; (2) Company executives or managers may obtain an L-1A visa to work for a foreign company here in the U.S.; (2) Employees with specialized knowledge can obtain an L-1B visa to transfer from the foreign company to a U.S. office, subsidiary, or affiliated company to perform temporary services.

1.     L-1A New Office

An L-1 visa can be obtained for foreign companies to open a new office in the U.S. A manager, executive or employee with “specialized knowledge” can come to the U.S. to open a new office on behalf of the company abroad. New office means an organization that is doing business in the U.S. through a parent, branch, affiliate or subsidiary less than one year. Opening a new office permits a foreign employer to transfer an employee at a U.S. company that has a qualifying relationship to the foreign company and has been operating for less than one year. An L-1A visa for a new office can only be granted for one year. At the end of that year the U.S. company must demonstrate that it can support a managerial or executive position in order to qualify for a visa extension.

General Requirements for L-1 New Office

When filing for purpose of opening a new office in the U.S., USCIS requires that there must be evidence that a physical space has been obtained for the new U.S. office in order to do business.

The following can satisfy this requirement:

1. A signed lease agreement

2. Mortgages or proof of real estate purchase

3. Business plan, marketing material, or other description of the business connecting the business with the space required.

2.     L-1A Intracompany Transferee Executive or Manager

The L-1 A nonimmigrant classification enables a U.S. Employee to transfer an executive or manager from one of its affiliated foreign offices to one of its offices in the United States.  This classification also allows a foreign company that does not have an affiliated U.S. office to send an executive or manager to the United States with the purpose of establishes one.

Qualifications for L-1A

The sponsoring company must (1) have a qualifying relationship with the foreign company and (2) currently be, or will be, doing business as an employer in the United States.

The foreign national employee must (1) have been working for the qualifying organization abroad for one continuous year within the last three years and (2) be seeking to enter the United States to provide services in an executive or managerial capacity.

What Constitutes Executive Capacity?

To demonstrate that an employee is seeking to enter into the U.S. to provide services in an executive capacity, the following criteria’s must be met. The employee’s assignments within the organization is primarily to:

1.     Direct the management of the organization or a major component or function of the organization;

2.     Establishes the goals and policies of the organization, component, or function;

3.     Exercises wide latitude in discretionary decision-making; and

4.     Receives only general supervision or direction from higher level executives, the board of directors, or stock holders of the organization.

What Constitutes Managerial Capacity?

If an employee is not classified as an executive, then the employee may be able to demonstrate that they are seeking to enter the U.S. to provide services in a managerial capacity.  To qualify as an L-1A Manager all four components must be met:

1.     Manages the organization, department, subdivision, function or component of the organization;

2.     Supervises and controls the work or other supervisory, professional or managerial employees, or manages an essential function within the organization or a department or subdivision of the organization;

3.     Has the authority to hire and fire or recommend those as well as other personnel actions 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

4.     Exercises direction 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.

Additionally, an employee that is providing services in a managerial capacity can also be a “personal manager” or a “functioning manager.” Personnel managers must primarily supervise and control the work of other supervisory, professional, or managerial employees, whereas function managers must primarily manage an essential function within the organization. Ultimately, USCIS will review the totality of evidence to determine whether the employee will primarily manage as opposed to perform.

Period of Stay for L-1A

Qualified employees entering United States to establish a new office will be allowed a maximum initial stay of one year.

All other qualified employees will be allowed a maximum initial stay of three years.

For all L-1A employees, a request for extension of stay may be granted in increments of up to an additional two years.

The maximum period of stay allowed on L-1A is seven years.

Family of L-1 Workers

A transferring employee may be accompanied by his or her spouse and unmarried children who are under 21 years of age.

Blanket Petitions

The L-1 Blanket petition is a procedure through which a very large company may pre-qualify to transfer its L-1 employees. Once the L-1 Blanket is approved, the company may transfer people to the U.S. on L-1 visa quickly and on short notice without having to file a separate petition for each employee with the United States Citizenship and Immigration Services (USCIS).

A company may qualify for a L-1 Blanket if its meets one or more of the following:

1.     U.S. company with at least 1,000 employees

2.     U.S. Company which has obtained an L-1 visa for at least ten of its employees during the previous 12 months

3.     U.S. company and related U.S. companies have combined annual sales of at least $25 million.

3.     L-1B Intracompany Transferee Specialized Knowledge

The L-1B visa allows for the intracompany transfer of a specialized knowledge employee of a foreign entity to a U.S. parent, affiliate, and subsidiary company.  The employee must perform services in a specialized knowledge position to the U.S. business.

General Qualifications for L-1B

The sponsoring company must (1) have a qualifying relationship with the foreign company and (2) currently be, or will be, doing business as an employer in the United States.

The foreign national employee must (1) have been working for the qualifying organization abroad for one continuous year within the last three years and (2) be seeking to enter the United States to provide services in a specialized knowledge capacity.

What Constitutes Specialized Knowledge?

A person is deemed to have specialized knowledge if one of two criteria are satisfied: (1) the person has “specialized knowledge” of the company products and its application on the international market or (2) the person has “advanced knowledge” of the process and procedures of the company.

One of the several factors that may be considered in determining whether the knowledge is specialized is the amount and type of training, work experience, or education required to developed that knowledge.  Advanced knowledge is the knowledge of or expertise in the petitioning organization’s special procedures that is not commonly found in the relevant industry and is greatly developed or further along in process, complexity and understanding that is generally found within the employer.  Knowledge will not typically be considered specialized or advanced if that knowledge can be imparted from one person to another.

Period of Stay for L-1B

Qualified employees entering United States to establish a new office will be allowed a maximum initial stay of one year.

All other qualified employees will be allowed a maximum initial stay of three years.

For all L-1B employees, a request for extension of stay may be granted in increments of up to an additional two years.

The maximum period of stay allowed on L-1B is five years.

Family of L-1 Workers

Transferring employees may be accompanied by his or her spouse and unmarried children who are under 21 years of age.

Blanket Petitions

The L-1 Blanket petition is a procedure through which a very large company may pre-qualify to transfer its L-1 employees. Once the L-1 Blanket is approved, the company may transfer people to the U.S. on L-1 visa quickly and on short notice without having to file a separate petition for each employee with the United States Citizenship and Immigration Services (USCIS).

A company may qualify for a L-1 Blanket if its meets one or more of the following:

1.     U.S. company with at least 1,000 employees

2.     U.S. Company which has obtained an L-1 visa for at least ten of its employees during the previous 12 months

3.     U.S. company and related U.S. companies have combined annual sales of at least $25 million.

INFORMATION NEEDED:

The USCIS needs certain documents and evidence to include in an application for L-1 visas.  

• The petitioning U.S. entity must have a qualifying relationship with the entity abroad.

o   This means that the new U.S. office must be a parent, affiliate, subsidiary or branch of the foreign entity, and that both the U.S. office and the foreign entity must continue to share common ownership and control by showing the business license, articles of incorporation, annual reports, etc.  

• Must show evidence that the foreign employee worked at the overseas employment for one out of last three years.

o   Evidence includes:

§  pay stubs,

§  payroll records,

§  tax returns,

§  evidence of work  

• Must show that the foreign employee as employed in a managerial, executive, or specialized knowledge capacity.  

o   Evidence include

§  Organization chart showing position

§  Patents or other evidence of company’s technology, products, or services that are based on your work

§  Performance reviews

§  Loans/financing

§  Resume

• Sufficient physical space must be secured for a new office

o    If obtaining a new office space in the United States, a space must be secured through lease, purchase, or other means.

• After one year, demonstrating that new office is operating. 

o   Within one year after the L-1’s admission to the United States if requesting an extension of stay, a new office must be active and operating within one year.

• If requesting an extension of stay in the L-1A classification

o   After 1 year the new office must support a managerial or executive position.

ADVANTAGES

• Processing Time

o   The Immigration Services usually decides the petition in 30-60 days.

• Duration

o   L-1 visas are granted initially for one to three years with extensions available in two year increments (with a total stay not to exceed seven years for L-1A visa and a total not to exceed 5 years for a L-1B visa).

• Permission to Work in the United States

o   The intracompany transferee is allowed to work for the United States subsidiary or affiliate company

• Includes Spouses and Children

o   The spouse and children (under 21) are allowed to accompany the L-1 Visa holder during the period of the transferee status.

• Conversion to Permanent Residence

o   In limited circumstances, it may be possible to convert the L-1 Visa for executives and managers to lawful permanent residence status under the EB-1 category

o   L-1Bbeneficiaries can obtain permanent residency through an employer-sponsored EB-2 or EB-3 petition.

• Dual-Intent

o   L status holders may file a petition for permanent residency status without jeopardizing their L status or their L-1 visa applications from a US Consular Office abroad.

DISADVANTAGES:

Ø  Temporary Transfer

o   L1 visas is temporary and subject to a maximum duration of seven years for L-1A and five years for L-1B. (seven-year limitation for L-1A and five-year limitation for L-1B).

Ø  Changing Employers

o   While on a L-1 visa, an employee cannot switch employers unless your new employer sponsors a separate L-1 petition.

Ø  Multinational companies

o   Only multinational companies qualify for L-1 visas.  This status is for individuals who have prior work history with the foreign company.