Mark A Ivener, A Law Corporation

L-1 Visas for Intracompany Transferees

Who Is Eligible

Employees being transferred from a foreign company to a U.S. company require an L-1 visa. The employee must be an executive, manager or a person with specialized knowledge with at least one year of foreign experience with a foreign company. The requirements for an L-1 visa include proof of continuous foreign employment for one year in the previous three years immediately prior to the application. The foreign employment requirement is satisfied even if there is a valid interruption in the performance of duties for the foreign company. If an L-1 beneficiary enters the U.S. in his or her capacity as an employee of the organization on some other type of visa, the time spent working in the U.S. under a valid visa will not be counted in assessing the one year requirement. However, neither will it be counted as applicable to the one-year previous foreign employment.

L-1A, Executives and Managers

An executive is one who directs the management of an organization or a major component or function of the organization. He or she establishes goals and policies and exercises wide latitude in discretionary decision making, receiving only general supervision or direction from higher level executives, the board of directors, or stockholders of the organization. Managers: A manager is one who has supervision and control over the work of other supervisory, professional or managerial employees, or who manages an essential function, department or subdivision of an organization. A manager has the authority to execute or recommend personnel actions if others are directly supervised. If no other employees are supervised, he or she must function at a senior level within the organization or with respect to the function managed, and must exercise discretion over the day-to-day operations of the organization or function managed.

L-1B, Employees with Specialized Knowledge

To qualify as an employee with specialized knowledge, the individual must possess special knowledge of the petitioning organization’s product, service, research, equipment, techniques, management or other interests, and its application in the international markets. The employee may also qualify under L-1 classification if he or she has an advanced level of knowledge or expertise in the organization’s processes or procedures. In July 2005, the USCIS released a memo addressing the standards and procedures for review of L-1B petitions, after the implementation of the L-1 Visa Reform Act of 2004. The rules apply only to L-1B employees with specialized knowledge, and not to L-1A executives or managers. The standards and procedures for review basically provide that the L-1B classification is not appropriate in certain situations where the worker is stationed primarily at a worksite other than that of the petitioning employer (or an affiliate, subsidiary, or parent of the petitioning employer). However, offsite placement alone does not automatically disqualify the L1B petition, and in order a petition to be disqualified, it is necessary for either:

  1. the employee to be principally under the control or supervision of the unaffiliated worksite employer; or
  2. the offsite placement work duties to consist essentially of labor-for-hire, as opposed to the offsite placement being connected with the specialized knowledge concerning the petitioning company’s product or service.

The ineligibility provisions relate only to those workers engaged in offsite employment, and do not apply if the L-1B beneficiary will be working at the sponsoring employer’s physical location. Where the L-1B visa holder works at both the employer’s offices and at an offsite placement, the USCIS will examine what the L1B beneficiary does when he or she is at each location to determine where the work is primarily performed. The provisions apply to all L1B cases, effective as of June 6, 2005. Thus, they apply not only to new, first-time petitions, but to any application for an L-1B, including an L-1B extension.

The L-1 Employer

The petitioning employer must be a subsidiary, affiliate or branch office, and there must be a relationship between the foreign and U.S. companies in which there is either more than 50% stock control, or a 50/50 joint venture with joint veto power. The relationship between companies is demonstrated either by showing that the corporations are the same or that one is a subsidiary, affiliate or branch office of the other.

Duration of the Visa

For a business that is just starting up, an L-1 visa is valid for one year For businesses that have been doing business in the United States for a year or longer, the visa is valid for up to three years with two-year extensions available for a total of up to five years for an employee with specialized knowledge, and up to seven years for an executive or manager. L-1 extensions have to be filed in the U.S. at the USCIS Regional Service Center servicing the area where the business is located.

How to Apply

An L-1 visa application for foreign nationals must be approved through an USCIS Regional Service Center. The USCIS then sends the approval notice to a U.S. Consulate, where the applicant obtains the L-1 visa.

Status of Spouse and Minor Children

The foreign national spouse or unmarried minor children of a foreign national with an L-1 visa are entitled to the same nonimmigrant classification, for the same length of stay, as the employee. The foreign national’s spouse and children are admitted with L-2 visas. The employee’s spouse may seek employment authorization from USCIS. Minor children cannot accept employment in the United States. Domestic workers of an L-1 visa holder can receive a B-1 visa with work authorization.