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L1/L2 Intra company Transfers and Their Families

L-1 visas are for Multi-National Managers and Executives who transfer from abroad Multi-National Corporations to their U.S. workplaces. Applicants must have been employed for at least one year within the past three years prior to the submission of the application of the L-1 visa. The applicant must work for this same employer. Finally, the alien must be a manager, an executive or in a position that requires specialized knowledge. L-1A applies to executives and managers. L-1B applies to those with specialized knowledge. An L-2 is the application for a spouse or minor child of an alien classified as L-1.

L-1 Visa Qualifications:

An alien seeking to enter the U.S. temporarily to continue to work for a current employer or one of the employer’s affiliates or subsidiaries may qualify for an L-1 visa. The following qualifications must be met:

  • the alien must have been employed abroad for at least one continuous year within the past three years for the transferring company;
  • the alien must have worked abroad in a managerial or executive capacity or one involving specialized knowledge; and
  • the alien will continue to work in the U.S. in one of the above capacities.

The foreign company must have employed the L-1 beneficiary directly as an employee of the company; an independent contractor or a person who is outsourced to the company does not qualify.

Definitions:

The definition of managerial capacity requires that the employee primarily:

  • manages an organization, department, subdivision, function or component;
  • supervises and controls other managerial, supervisory, or professional personnel or manages an essential function within the organization;
  • has authority to hire and fire or recommend personnel actions, or functioning at a senior level if managing a function; and
  • exercises discretion over day-to-day operations of the activity or function. First-line supervisors are not considered managers unless the employees they supervise are professionals.

The definition of executive capacity requires that the employee primarily:

  • directs the management of the organization or a major component or function;
  • establishes goals or policies;
  • has wide latitude in discretionary decision making; and
  • receives only general supervision from higher executives, the board of directors, or stockholders.

The definition of specialized knowledge includes a person who:

  • has special knowledge of the company’s product, service, research, equipment, techniques, management or other interests; and
  • its application in international markets or has an advanced degree of knowledge of processes and procedures of the company.
  • This does not apply to skilled workers; knowledge and expertise must not be readily available in the U.S. marketplace. Offsite work is allowed but only if the person has specialized knowledge and is controlled by the petitioner and not a third party.

The company must be a qualifying organization. The transferring company must continue to do business abroad for the entire period of the alien’s transfer to the U.S. To determine what is a qualifying organization, these are generally the factors looked to:

  • Common name
  • Regular sharing and exchange of personnel
  • Cross directorship
  • sharing of technical, financial and research skills
  • Size and general recognition of organization.

Usually, a majority stock ownership by the same shareholders in both companies is enough to establish the appropriate relationship between the companies, but a contractual relationship, such as a franchise, is generally not enough to establish the necessary relationship of subsidiary/affiliate. Even if there is less than a majority ownership, control may be enough to qualify a relationship as subsidiary/affiliate.

Procedure:

A U.S. employer seeking the employee’s transfer to the U.S. must file a petition to classify the nonimmigrant alien as a temporary worker. The employer must file form I-129 and L-supplement with the USCIS Service Center.

Individual petitions must be accompanied by evidence of the following:

  • the transferring and transferee organizations are "qualifying organizations";
  • the alien will be employed in one of the qualifying capacities;
  • the alien has been employed abroad with a qualifying organization for at least one year during the three-year period immediately preceding the filing of the petition;
  • the alien’s year of employment abroad was also in one of the qualifying capacities; and
  • the alien’s prior education, training, and employment qualifies the alien to perform the intended services in the U.S.

The petition must also include a letter from the U.S. employer containing a description of the position the alien filled abroad and the position to be filled in the U.S., and an affirmation that the two entities involved in the transfer are part of a qualifying organization. The employer must submit a letter from the foreign employer documenting that the alien meets the one-year-in-three standard.

If the employee is transferred to open a new office or if the U.S. company is less than one year old, then additional evidence may be required such as sufficient physical evidence to house the new office.

If the USCIS approves the employer’s petition, it will forward a notice of the approval to the U.S. consulate where the alien will apply for the visa. The USCIS also sends an original approval notice to the employer. The alien can go to the U.S. consulate and make a visa application once the alien has received the notification from the USCIS. The alien can proceed to the U.S. border with the visa to apply for admission to the U.S.

Time period:

The initial approval period has a maximum of 3 years, but in a transfer to open a new office the initial approval is for 1 year. Executives and managers can obtain an extension of up to 7 years, and specialized knowledge personnel can obtain extensions up to a limit of five years. Extensions are granted in two-year increments. An L-1 alient who as been in the U.S. for the full five or seven year period is barred from re-entering the U.S. until he has resided outside of the U.S. for a full year.

Blanket petitions:

Large companies and frequent L-1 category users can receive approval of a blanket petition. Under a blanket petition the corporate structure is approved by the INS and the company then issues its own certificates of eligibility to transferees. The requirements for a blank petition are as follows:

  • The Petitioner has an office and has been doing business in the U.S. for at least one year;
  • The petitioner has 3 or more domestic and foreign branches, subsidiaries or affiliates, which are engaged in commercial trade or services; and
  • Has a combined U.S. annual sales of $25 million, U.S. workforce of 1000, OR received approval of at least 10 L-petitions in the last 12 months.

To obtain a blanket petition, the qualifying employer files an L-1 blanket petition on Form I-129 and L-supplement with the Service Center. The blanket petition must include the names of all qualifying organizations that will seek transfers under it, as well as evidence of eligibility under the criteria stated above.

A prospective transferee can go directly to the U.S. consulate abroad with the company issued certificate of eligibility and a copy of the blanket petition approval notice to receive an L-1 visa. Before receive the visa the alien must show that:

  • the alien was continuously employed for a period of one year within the last three years with one of the qualifying organizations under the blanket petition;
  • the alien’s employment abroad was in a managerial or executive capacity, or as a professional with specialized knowledge (but may not be used for specialized knowledge positions that are not "professional" in nature); and
  • the alien’s employments in the U.S. is in a managerial or executive capacity, or as a professional with specialized knowledge (but may not be used for specialized knowledge positions that are not "professional" in nature).

An initial blanket petition is valid for three years, and aliens admitted under the petition approval will be granted a full three-year period of stay. A company can seek an extension after three years and this extension is valid for an indefinite period. Any time the corporate structure changes or the positions qualifying for L-1 transfer change, the company needs to file an amended Form I-129 with L-supplement with the Service Center where the original petition was filed.

12-05-06-USCIS Issues New Guidance On Periods of Stay for H and L Visa Holders-Click here to read more.

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