Intracompany Transferees (L-1A & L-1B)

The Basics

 

The L-1A and L-1B nonimmigrant visas are designed for intracompany transferees. The general criteria for classification in this category are that the employee have worked outside the US for a related company for at least twelve months in the three years immediately preceding the proposed transfer, in either a managerial/executive (L-1A) or specialized knowledge (L-1B) capacity, and that the employee be coming to the US company to perform work in a similar capacity.

The relationship between the employer abroad and the proposed employer in the US is an important requirement for L-1A or L-1B visa status. The US company must show, by submitting corporate documentation, that it is either the parent, subsidiary, affiliate, or branch office of the company abroad.

The L-1 petition is initially granted for up to three years, with possible extensions in two-year increments for up to another two years (L-1B) or up to another four years (L-1A). After five years in L-1B status, or seven years in L-1A status, the individual must depart the US for at least one year before qualifying again for L-1 status.

There is an important exception to the general rule permitting L-1 petitions to initially granted for up to three years. If the petitioning US employer has been doing business in the US for less than one year, then the petition will initially be granted for only one year. Please note that the maximum period of authorized stay with all extensions granted will still be seven (L-1A) or five (L-1B) years.

In addition to the requirement that the employer in the US and abroad have the qualifying relationship, the individual seeking the visa must have been employed for at least twelve months outside the US in an executive/managerial capacity (L-1A) or in a capacity involving specialized knowledge. Furthermore, the job offered in the US must be in one of these two capacities.

The L-1 visa is a temporary visa. It is not a green card, nor does it automatically lead to becoming a permanent resident of the US However, you may pursue a green card while you are in the US in temporary L-1 status.

There are many different ways to become a permanent resident, but the employment-based, first preference immigrant visa for multinational managers and executives is often the route followed by L-1A visa holders, since its requirements are almost identical.

Documentation of Intracompany Relationship

There are a number of relationships regarding the ownership and control of the previous employer outside the US and the proposed employer inside the US that qualify for either L-1A or L-1B visa status. There are specific requirements regarding the percentage of ownership and control required for L visa status, but the percentage required varies depending on the facts of the specific case. Here is a short summary of the types of documentation most commonly used:

If the US company is a corporation owned by the company outside the US:

> Copy of articles of incorporation of the US company.
> Copy of share certificates or stock ledger of the US company showing the companyabroad's percentage of ownership and control.
> Copy of the US company's federal corporate tax return.
> Copy of the parent company's annual report, listing the US subsidiary.
> If the company outside the US is a subsidiary of the company in the US:
> Copy of the articles of incorporation or similar registration documents for the company outside the US
> Copy of share certificates or stock ledger for the foreign company, showing the percentage ownership and control by the US company.
> Copy of the US company's annual report, listing the foreign subsidiary.
> If the company in the US and the company in the US and the company outside the US are owned and controlled by the same parent company, individual, or group of individuals:
> Copy of the articles of incorporation or similar registration documents for the US company and the company outside the US.
> Copy of share certificates or stock ledger for the US company and the foreign company,showing the percentage ownership and control by the common parent company, individual or group of individuals.
> Copy of the common parent company's annual report, listing the US and foreign subsidiaries.
> If one company is merely a branch office (and not a separate legal entity) of the other:
> Copy of the certificate issued by the state Secretary of State qualifying the company to do business in the state or similar registration from the foreign government having jurisdiction over a branch office outside the US.
> Copy of audited financial statement or tax return showing who owns and controls the branch office.
> Copy of the US company's annual report, listing the branch office.

L-1A Managers/Executives
The L-1A nonimmigrant visa classification requires that the employee have worked outside the US for a related company for at least twelve months in the three years immediately preceding the proposed transfer in a either a managerial/executive or in a capacity involving specialized knowledge, and that the employee be coming to the US company to perform work in a managerial/executive capacity.

CIS regulations define the term managerial capacity to mean an assignment within an organization in which the employee primarily:

> 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 aspromotion and leave authorization) 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
> Exercises discretion 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.
> Executives

CIS regulations define the term executive capacity to mean an assignment within an organization in which the employee primarily:

> Directs the management of the organization or a major component or function of the organization;
> Establishes the goals and policies of the organization, component, or function;
> Exercises wide latitude in discretionary decision-making; and > Receives only general supervision or direction from higher level executives, the board of directors, or stockholders of the organization.

NOTE FOR NEW COMPANIES: If the employee is coming to the US as a manager or executive to be employed at an office in the US that has not been doing business for at least one year, then the government somewhat alters its managerial and executive definitions to the company's benefit. In such circumstances, the evidence accompanying the L-1A petition must show that the proposed employment will support an executive or managerial position within one year. Furthermore, information must be provided regarding:

> The proposed US employer's scope, organizational structure, and financial goals;
> The size of the investment in the US and the financial ability of the employer abroad to compensate the employee and commence doing business in the US; and
> The organizational structure of the company abroad.

L-1B Specialized Knowledge
The L-1B nonimmigrant visa classification requires that the employee have worked outside the US for a related company for at least twelve months in the three years immediately preceding the proposed transfer in a capacity involving specialized knowledge or in a managerial/executive capacity, and that the employee be coming to the US company to perform work in a capacity involving specialized knowledge. L-1B visa holders are generally prohibited from working at job sites other than their petitioning employer if the work will be controlled or supervised by a different employer or if the arrangement is essentially to provide labor for hire.

USCIS regulations define the term specialized knowledge to mean special knowledge possessed by an individual of the proposed L-1B employer's product, service, research, equipment, techniques, management, or other interests and its application in international markets, or an advanced level of knowledge or expertise in the organization's processes and procedures.

Q: Can I change status to L-1 while in the U.S. in another status?

Q: How long does it take to get my L-1 visa approved?
A: Regular processing will take 2-4 months, plus the time necessary to obtain the required documentation
and supporting evidence. Premium processing is also available for an additional filing fee of $1,000, and will guarantee processing within 15 business days.

Q: Does the company and/or position overseas need to be of the same type as the one in the U.S.?
A: No. So long as the qualifying relationship exists between the companies, the nature of the business conducted by each may be different. Similarly, the L-1 visa holder may hold a different position in the U.S., so long as it is also managerial or executive in nature.

Q: Does the U.S. business need to be well established or can it be a new business?
A: Either new or existing businesses can support an L-1 visa, so long as there is a qualifying relationship between the two enterprises (i.e. parent, subsidiary, affiliate, etc.). The L-1 visa is particularly suited to a foreign company that is establishing a U.S. branch office. It is important to note that L-1 visas for new U.S. offices will only be granted for an initial period of one year, after which the visa will need to be extended.

Q: Can the spouse and/or children of an L-1 visa holder accompany them in the U.S.?
A: Yes, dependents receive L-2 visas for the same time period that the principal remains in L-1 status. The L-2 spouse is allowed to work while in the U.S., and L-2 children can attend public or private schools.

Q: How long do L-1 visas last?
A: L-1 visas can be granted in three-year increments (one year for initial L-1’s for new businesses), with a maximum of seven years for L-1A’s and five years for L-1B’s.

Q: Can L-1 visa holders apply for permanent residence in the U.S.?
A: Yes. L-1 visas are considered “dual-intent” like H-1b visas, and thus may be maintained and extended even when the green card process has been initiated. L-1A visa holders can obtain permanent residence very rapidly in the EB-1 category, which does not require labor certifications, and L-1B visa holders can apply in EB-3 or the faster EB-2 categories if their position requires an advanced degree.