L-1 Intracompany Transfers
An L-1 Intracompany Transferee visa is a temporary work visa for multinational companies who seek to transfer high-level managers, executives (L-1As) and employees with specialized knowledge (L-1Bs) from overseas to provide services in a similar capacity to a related entity in the United States. Here are the basic requirements:
• Applicant worked abroad for one continuous year within three years preceding the filing of this application. (Visits to US do not break, but also do not count as time)
• US Job is an executive, managerial, or specialized knowledge capacity.
“managerial capacity” means 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 as promotion and leave authorization), if another employee or other employees are directly supervised; or, 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 his or her supervisory duties unless the employees supervised are professional.
“executive capacity” means 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.
– special knowledge possessed by an individual of the petitioning organization’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.
– Test for specialized knowledge centers on a product or process within a particular company: Alien should possess a type of specialized or advanced knowledge that is different from that generally found in the particular industry. The knowledge need not be proprietary or unique.
Where the alien has specialized knowledge of the company or product, the knowledge must be noteworthy or uncommon. Where the alien has knowledge of company processes or procedures, the knowledge must be advanced.
• US Employer is Same or a qualifying, related business
– A qualifying organization must be a U.S. or foreign firm, corporation, or other legal entity. Can be profit or non-profit.
– Must be doing business as an employer in the United States and in at least one other country through a relationship defined in the regulations, including parent, branch, subsidiary, or affiliate.
• U.S. Employer must establish an employer-employee relationship with the intracompany transferee.
– Beneficiary may continue to receive a salary and benefits from the foreign entity; however, U.S. entity must have control of the employee.
– Authority to fire the employee is considered substantial evidence of a qualifying employer-employee relationship.
Special Provisions for New Office
Special provisions apply to persons being transferred as L-1 intracompany transferees for the purpose of opening a new office. A “new office” is defined as “an organization that has been doing business in the United States through a parent, branch, affiliate or subsidiary for less than one year.”
Additional evidence, including evidence of office space and a business plan, must be submitted in such cases, and the petition is initially approved for only one year. To extend the stay in L-1 status after one year, a new I-129 petition and additional evidence must be filed that demonstrates the new office has become an established business and will support an executive/manager.
Duration of the Visa
An L-1A visa is provided in 3-year increments and the maximum amount of years is 7; an L-1B visa has a maximum of 5 years. New office Ls are only given 1 year initially, but then one can renew.
Ownership in the Business
The law does not preclude stockholders or owners from having an L-1A or L-1B visa. However, such individuals must show their stay is temporary and that they are returning to employment abroad. This is not a visa to promote self-employment.
Roving L Workers
There are now restrictions on an L-1 visa holder being primarily stationed at the worksite of another employer where: (1) The L-1 visa holder will be controlled and supervised by an unaffiliated employer, or (2) The placement of the L-1 visa holder at the third party site is part of an arrangement to provide labor for the third party rather than placement at the third party site in connection with the provision of a product or service involving specialized knowledge specific to the petitioning employer.
Spouses and minor children of L-1 non-immigrants may enter the United States in L-2 status. 55 Spouses of L-1 non-immigrants who are admitted in L-2 status are eligible for employment. 56 It is important to note that only L-2 spouses and not other L-2 dependents are authorized to work.