Chapter 19 Getting an Intracompany Transferee (l-1) Visa

• Library: U.S. Immigration Made Easy (Nolo) (2023 Ed.)

CHAPTER 19 Getting an Intracompany Transferee (L-1) Visa

A. Do You Qualify for an L-1 Visa?

1. Manager, Executive, or Person With Specialized Knowledge
2. Parent, Branch, Subsidiary, Affiliate, or Joint Venture Partner
3. Blanket L-1 Visas: Privileges for Large Companies
4. Specialized Knowledge Professionals Under Blanket L-1 Visas
5. Bringing Your Immediate Relatives

B. Possibilities for a Green Card From L-1 Status

C. Quick View of the L-1 Visa Application Process

D. Step One: Your U.S. Employer Files a Petition

1. Simultaneous Change of Status If You're Already Legally in the U.S
2. Preparing the Petition
3. Mailing the Petition
4. Awaiting a Decision on the Petition

E. Step Two: Applicants Outside the U.S. Apply to a U.S. Consulate........463

F. Step Three: L-1 Visa Holders Enter the U.S

G. Extending Your U.S. Stay

1. L-1 Extension Petition
2. L-1 Visa Revalidation
3. Blanket L-1 Extensions

The L-1 visa allows managers, executives, or especially knowledgeable employees who work outside the U.S. for a company that has an affiliated entity inside the U.S. to come to the U.S. and perform services for that entity. There are no limits on how many people can get L-1 visas every year.

SEE AN EXPERT

Do you need a lawyer? You can't apply for an L-1 visa without having an employer first—and it's in your employer's interest to hire a lawyer to help. A lawyer can help make sure that your application gets done right the first time and deal with all the bureaucratic hurdles.

A. Do You Qualify for an L-1 Visa?

You qualify for an L-1 visa if you have been employed outside the U.S. for at least one continuous year out of the past three years, and you are transferred to the U.S. to work as a manager, an executive, or a specialized-knowledge worker.

The U.S. company to which you are transferring must be a parent, a branch, a subsidiary, an affiliate, or a joint venture partner of your non-U.S. employer. The non-U.S. company must remain in operation while you have the L-1 visa. "Non-U.S. company" means that it is physically located outside the United States. Such a company may be a foreign division of a U.S.-based business or it may have originated in a country outside the United States. Either one fits the definition of a non-U.S. company. You should show that you can expect to go back to work for the non-U.S. company upon your return. If your foreign employer closes, the U.S. employer must have a related foreign company to which you could theoretically be transferred.

Key Features of the L-1 Visa

Here are some of the advantages and disadvantages of the L-1 visa:

• You can work legally in the U.S. for your L-1 sponsor for up to three years on your first visa. You may then apply for extensions of two years at a time, up to a maximum of seven years if you're a manager or executive, or five years if you're a person with specialized knowledge. Previous time spent in H visa status counts toward the five or seven years, unfortunately.
• You may work only for the U.S. employer who acted as your visa sponsor, and it must be a parent, branch, or subsidiary, an affiliate, or a joint venture partner of the company that currently employs you outside the United States.
• Visas are available for your accompanying spouse and minor children, and your spouse's dependent L-2 status provides open market employment authorization immediately upon arrival in the United States.
• You may travel in and out of the U.S. or remain here continuously until your L-1 status expires.
• If you have an L-1 visa, and you want to apply for a U.S. green card through employment, you can do so. Executives and managers likely qualify for an EB-1 green card. (See Chapter 9.)
• The L-1 visa is "dual intent," which means that you can get the visa even if you are also seeking a green card.

If you're coming to the U.S. to establish a new office (basically, any office open less than year), your employer must show that it has bought or leased sufficient space to house the new office, and that the new U.S. office will support an executive or managerial position within one year of the petition approval.

To get an L-1 visa, it is not necessary that either your non-U.S. or prospective U.S. employer be operating in a particular business structure. Many legal forms of doing business are acceptable, including, but not restricted to, corporations, limited corporations, partnerships, joint ventures, and sole proprietorships. The employer may also be a nonprofit or religious organization.

Although you are ordinarily expected to work full time in the U.S., you can work somewhat less if you dedicate a significant portion of your time to the job on a regular and systematic basis.

1. Manager, Executive, or Person With Specialized Knowledge

To be eligible for an L-1 visa, the job you hold with the non-U.S. company must be that of a manager, an executive, or a person with specialized knowledge. Managers and executives receive L-1A visas and people with special knowledge receive L-1B visas. You must have worked in one or the other of those positions for a total of at least one year out of the past three years. That year must have been spent outside the United States. For immigration purposes, the definitions of "manager," "executive," and "specialized knowledge" are more restricted than their everyday meanings.

a. Managers

A manager is defined as a person who:

• manages an entire 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, department, or subdivision of the organization
• has the authority to hire and fire or recommend these and other personnel decisions regarding the employees being supervised, or if no employees are supervised,
• works at a senior level within the organization or function, and
• has the authority to make decisions concerning day-to-day operations of the portion of the organization being managed.

First-line supervisors are lower management personnel who directly oversee nonmanagement workers. A first-line supervisor is not normally considered a manager unless the employees supervised are professionals. The word "professionals" here means workers holding a university degree in a field related to their occupation.

A manager coming to work for a U.S. office that has been in operation for at least one year also likely qualifies for a green card as an EB-1 priority worker. See Chapter 9 for details.

b. Executives

An executive is defined as a person whose primary role includes:

• directing the management of the organization or a major function or component of it
• setting the goals or policies of the organization or a part or function of it
• exercising extensive discretionary decision-making authority, and
• receiving only general supervision or direction from higher-level executives, a board of directors, or the stockholders of the organization.

An executive coming to work for a U.S. office that has been in operation for at least one year also likely qualifies for a green card as an EB-1 priority worker. Again, see Chapter 9 for details.

c. Persons With Specialized Knowledge

The term "specialized knowledge" refers to an understanding of the employer company, its products, services, research, equipment, techniques, management or other interests and its application in international markets, or advanced knowledge of the company's processes and procedures. USCIS and consular officers will be looking for knowledge that is not held commonly throughout the industry, but is truly specialized. They will also be looking to see that such knowledge is not readily available in the United States.

2. Parent, Branch, Subsidiary, Affiliate, or Joint Venture Partner

L-1 visas are available only to employees of companies outside the U.S. that have related U.S. parents, branches, subsidiaries, affiliates, or joint venture partners. There is also a special category for international accounting firms. For visa purposes, these terms have specific definitions.

a. Parent

A parent is a non-U.S. company that owns more than 50% of the U.S. employer.

b. Branches

Branches are simply different operating locations of the same company. The clearest example of this is a single international corporation that has branch offices in many countries.

c. Subsidiaries

In a subsidiary relationship, the U.S. company owns a controlling percentage of the foreign company, that is, 50% or more.

d. Affiliates

Affiliate business relationships are more difficult to demonstrate than those of branches or subsidiaries because there is no direct ownership between the two companies. Instead, they share the fact that both are controlled by a common third entity, either a company, group of companies, individual, or group of people.

There are two methods of ownership that will support an L-1 visa based on an affiliate relationship. The first is for one common person or business entity to own at least 50% of the non-U.S. company and 50% of the U.S. company. If no single entity owns at least 50% of both companies, the second possibility is for each owner of the non-U.S. company to also own the U.S. company, and in approximately the same percentages. For example, if five different people each own 20% of the stock of the non-U.S. company, then the same five people must each own 20% of the U.S. company for an affiliate relationship to exist.

e. Joint Venture Partners

A joint venture exists when there is no common ownership between the two companies, but they have jointly undertaken a common business operation or project. To qualify for L-1 purposes, each company must have veto power over decisions, take an equal share of the profits, and bear the losses on an equal basis.

In a situation where both the U.S. and non-U.S. companies are in the corporate or limited form and the majority of the stock of both is publicly held, unless they are simply...