Intracompany Transfers (L-1 Visas)

The L visa category is designed to allow multinational enterprises to transfer key personnel to the United States for relatively long-term but temporary assignments.  In most cases, the individual to be assigned to the United   States must have worked in a qualifying capacity for the enterprise or one of its related companies abroad for at least one year prior to eligibility for transfer in L-1 status. The process involves two distinct steps: filing an employer’s petition with the United States Citizenship & Immigration Services (“USCIS”) at one of its four regional service centers, and, after approval, submitting an individual nonimmigrant visa application to an American consular office overseas.

Qualifying Business Relationship

The current employer abroad and the prospective employer in theUnited States can be a corporation, partnership, or even a sole proprietorship, and need not be a large, multinational organization.  However, a “qualifying relationship” must exist between these two entities.  The company or organization in the United States to which the employee is to be transferred must be a parent, subsidiary, affiliate or branch office of the foreign company at which he or she was previously employed.  “Subsidiary” generally refers to a company majority-owned by the former employer.  “Affiliate” is generally regarded as one of two subsidiaries, both of which are owned and controlled by the same parent.

Joint venture enterprises can qualify under a specific definition of subsidiary requiring strict 50 – 50 ownership and control over that enterprise.

New Offices

There are special requirements to be met in the case of a foreign national being transferred to a “new office” in theUnited States.  An individual coming to set up or work in a new office — one in existence for less than one year — can receive an L-1 visa for an initial period of only one year.  However, unlike other situations, such a transferee may be engaged during this first year in performing duties needed to establish the business or run its daily operations and will not be required to immediately assume a position which is primarily managerial or executive in nature.  The petitioner must show that sufficient funds are available to compensate the transferee, that appropriate office space has been obtained, and that the new office will be able to sustain a manager or an executive transferee within one year of approval of the petition.

Employment Responsibilities

The employee to be transferred must have worked abroad as an executive or manager or in a position requiring specialized knowledge for at least one of the three years immediately preceding the transfer, and must be transferring to a qualifying company in the United States in a similar capacity.  The statute and regulations define these employment categories narrowly.

An executive position involves directing the management of an organization or a major component or function of that organization, establishing the goals and policies of that organization, component or function, and exercising wide latitude in discretionary decision-making.  These are generally senior level positions.

Qualifying managerial positions similarly involve specific responsibilities for an organization, department, subdivision, function or component of the organization, generally including supervision and control of the work or other professional, managerial, or supervisory level employees.  A manager will exercise discretionary authority over day-to-day operations, with specific authority to hire and fire employees or to recommend these and other personnel actions.  USCIS is required to recognize that managers may have responsibility for an essential function of an organization without actual responsibility for the work of other staff.

Positions requiring “specialized knowledge” involve a specific, advanced level of expertise or knowledge in such areas as the organization’s products, services, manufacturing or management techniques, processes or procedures, and the application of that knowledge in international markets.

Please note in particular that in “specialized knowledge” cases, both USCIS and Consular Offices overseas increasingly take the position that such knowledge cannot be acquired in a mere 12 months.  In such cases, it is advisable to select personnel with more extensive qualifying experience for transfer.

Blanket L-1 Petitions

USCIS has been given statutory authority to permit large multinational companies to facilitate admission of L-1 transferees by use of an approved “blanket” petition.  This special procedure is intended to save those companies time and effort in qualifying key employees for L-1 visas.

In essence, qualifying companies will need only one approval from USCIS for all executives, managers, and professionals employed in positions requiring specialized knowledge whom they will transfer during an initial “probationary” three-year period.  The approved blanket program may be converted to an indefinite approval at the end of this three year period.  All individual transferees will, of course, remain subject to the maximum seven and five year limits on duration of stay discussed below.

In order to qualify for approval of an L-1 blanket petition, a company and its international subsidiaries and affiliates must meet the following requirements:  the petitioner must have an office in the United States that has been doing business for at least one year and must have at least three domestic or foreign branches, subsidiaries, or affiliates.  In addition, it must have had at least ten L-1 visa approvals in the past year, gross U.S. sales of at least $25 million, or a force of at least 1,000 employees.

Duration of Stay

An L-1 visa will not be issued unless a petition is first approved by USCIS.  The validity of the visa will be coterminous with the validity of the petition, itself limited to an initial period of three years, with the exception of “new offices.”  Entry documents are generally issued for up to three years and are limited to the expiration date of the visa.

The total amount of time which may be granted to an individual in L-1 status is seven years for executives and managers and five years for individuals employed in a specialized knowledge capacity.  Where the transferee’s presence in theUnited States is only intermittent and not required on a full time basis, these time limits may not apply.

Nonimmigrant Visa Petition

Either theU.S. or foreign employer must submit a petition, Form I-129, to the appropriate USCIS Service Center on behalf of the prospective employee.  Information set forth in the petition must be supported by documentary evidence, including a company letter which identifies both the current foreign employer and prospective U.S. employer and establishes the necessary business relationship between them, describes the nature of the position performed abroad and that to be filled in the United States, establishes the need for an individual in an executive, managerial, or “specialized knowledge” capacity, and sets forth the terms of temporary employment.

Corporate documents including articles / certificates of incorporation, stock certificates, and annual reports are usually required to corroborate statements in the employer’s letter.  The individual’s qualifications must similarly be established by documentary evidence accompanying the employer’s petition, such as educational credentials and letters of experience.

Final approval generally requires up to three months after submission of the petition and all supporting documentation.  However, expedited processing of petitions is available through USCIS Premium Processing Service (“PPS”) if the employer submits an additional filing fee of $1,225.  Under the PPS program USCIS will adjudicate petitions within 15 days of receipt by issuing an approval, denial, or Request for Evidence (“RFE”).  A denial by the Service Center Director may be appealed to the Administrative Appeals Office in Washington,D.C.

Please note also that a petitioner filing an initial L-1A/B petition is required to pay a $500 Fraud Prevention and Detection Fee (established by Congress in the “L-1 Visa Reform Act of 2004”).  This additional fee must be paid with a check or money order that is separate from the base filing fee of $ 325.

Visa Issuance

Once granted, USCIS will send the approved petition to the Consulate designated as the post abroad where the individual will apply for the actual visa.  The individual must then go to the Consulate to apply for the visa and for an interview.

Please note that there are special procedures for submitting petitions on behalf of qualifying employees under an approved blanket L-1 visa program that do not require filing a petition with USCIS.   Once the employer’s program has been approved by USCIS, individual employees submit visa petitions, Forms I-129S, directly to a consular office overseas to obtain L-1 visas.

Finally, under certain circumstances, the transferee may be already present in the United States in lawful B-1 status, conducting business on behalf of his or her employer abroad prior to any assignment with the American firm.  In that event, he or she may be permitted to change status to L-1 while here without going abroad for a new visa.  However, should the need to travel abroad later arise, the transferee must then obtain an L-1 visa before returning to theUnited States.

Spousal Employment

Under legislation enacted in January 2002, qualifying dependent spouses of intracompany transferees admitted to the United States in valid L-2 visa status may apply for employment authorization by submitting an Application for Employment Authorization Document (EAD), Form I-765, to the USCIS.

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