L-1B Visa General Information

L-1B Visa intracompany transferee with specialized knowledge

L-1 visa lets a U.S. employer move an employee from a qualified foreign company to a U.S. office. A foreign company can also grant it when sending a foreign employee to work in the U.S. and establish a U.S. office. As opposed to H-1B temporary worker visas, L-1 visas are not subject to a numerical limit each year. There are two categories of L-1 visas:

• L-1A visa is for intracompany transferees who work in a managerial or executive position in a company located outside the United States.
• L-1B visa, for intracompany transferees who work in positions that require specialized knowledge.

This article will largely focus on the L-1B visa.

For all L-1 cases, the U.S. employer submitting an L-1 petition must meet the following requirements:

General Qualifications of the employer in all L-1 visa petitions

A U.S. employer seeking to classify an employee as an intracompany transferee must meet the following requirements:

• You are now, or will be, an employer in the United States and in at least one other country. Or, you will be with a qualifying organization. This will be for the whole time the beneficiary stays in the U.S. as an L-1. While the business must be viable, it does not need to engage in international trade; and

• Have a qualifying relationship with a foreign company (parent, branch, subsidiary, or affiliate, collectively referred to as qualifying organizations).

When a U.S. employer petitions to classify its employee as an L-1 visa holder, it should pay close attention to the legal terms “doing business” and “qualifying relationship”.

• Doing business

  For the L-1 visa, a U.S. employer is doing business when it regularly provides goods and/or services in a systematic and continuous way. Consequently, this does not include the mere presence of an agent or office of the qualifying organization in the United States or abroad;

• Qualifying relationship
  

  A U.S. employer has a qualifying relationship with a foreign company, for L-1 purposes, when the U.S. employer is either a parent, branch, affiliate or subsidiary of a foreign firm operating abroad. For purposes of L-1 visa:

• “Parent”
  

  means: a legal entity that has controlling ownership in other companies, which are called subsidiaries. For example, if a foreign agricultural company owned 75% of a food distribution company in the U.S. and controlled company operations, this would constitute a qualifying relationship for L-1 purposes. One thing that this scenario also illustrates is that the company abroad and the U.S. company do not need to be engaged in the same line of work for a qualifying relationship to exist.

• “Subsidiary”
  

  means: a legal entity that is directly or indirectly owned and controlled by another legal entity, called a parent. Usually for there to be a parent-subsidiary relationship, the subsidiary must be owned at least 50% by the parent company and controlled by the parent or owned 50% in a joint venture with one other company where they have equal control. However, if the parent owns less than 50% of the subsidiary there may still be a qualifying relationship for L-1 purposes as long as the parent can demonstrate that it actually controls the subsidiary, despite owning less than 50%.

• “Branch”
  

  means: an office of a company that is in a different location than other operating divisions of the company. A branch is not a separate business entity, so if a foreign corporation wanted to open a branch in the U.S, they would not have to incorporate a U.S. entity, although the foreign company would need to register in the state where the branch office will operate. This means a foreign company may send employees to work at a branch office located in the U.S.

• “Affiliate”:

  Companies are affiliates if they are owned and controlled by the same parent company or by the same individual or group of individuals. When a group of individuals owns the companies, they are considered affiliates if, within the group, each person owns and controls about the same proportion of each company. For example, if four friends jointly owned Company A, with each person owning 25%, and jointly owned Company B, with each person owning 25%, these two companies would be affiliates.

Blanket petitions

Certain companies may seek continuing approval of themselves as qualified organizations by filing a blanket L-1 petition. This saves them the requirement of filing individual L-1 petitions. A company is eligible for blanket L certification if:

• The company and each of those entities are engaged in commercial trade or services;
• The company has an office in the United States that has been doing business for one year or more;
• The company has three or more domestic and foreign branches, subsidiaries, or affiliates; and
• The company and the other qualifying organizations have obtained approval of petitions for at least ten “L” managers, executives, or specialized knowledge professionals during the previous 12 months; or have U.S. subsidiaries or affiliates with combined annual sales of at least $25 million; or have a United States workforce of at least 1,000 employees.

The approval of a blanket L petition does not guarantee that an employee will be granted the L-1 classification. It does, however, provide the employer with the flexibility to transfer eligible employees to the United States quickly and with short notice without having to file an individual petition with USCIS.

The following notes will focus particularly on the L-1B visa. Below are the requirements:

Specific requirements for the L-1B visa:

The applicable law provides two different requirements to qualify as an L-1B Intracompany transferee with specialized knowledge. To get an L-1B petition approved a transferee with specialized knowledge must:

• Have been working for a qualifying organization abroad for one continuous year within the three years immediately preceding his or her admission to the United States; and

• Be seeking to enter the United States to provide services in a specialized knowledge capacity to a branch of the same employer or one of its qualifying organizations

An employee seeking L-1B admission must shows that he/she has specialized knowledge, i.e. either special knowledge 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. This means the employee’s specialized knowledge should include unique qualifications and a higher level of expertise that distinguishes them from other employees.

If the L-1B employee works at a worksite belonging to an organization other than the petitioning employer or its affiliate, subsidiary, or parent, more requirements come into play. The employee must qualify for L-1B classification. The employer must show that:

• The employee will not be principally controlled or supervised by such an unaffiliated employer; and
• The work being provided by the employee is not considered to be labor for hire by such an unaffiliated employer.

New Office

A foreign company can also choose to send an employee with specialized knowledge to the United States for employment in a qualifying new office. In that case, the employer must meet the general requirements for the L-1B petition. They must also show that:

• The employer has secured enough physical premises to house the new office; and
• The employer has the financial ability to compensate the employee and begin doing business in the United States.

Period of Stay for L-1Bs

Qualified employees will enter the United States to start a new office. They will be able to stay for a greatest of one year. All other qualified L-1B employees will receive an initial stay of up to three years. L-1B employees may get requests for extensions in increments of up to two years. This can happen until the employee has reached the five-year limit.

To petition for an L-1B visa, the U.S. employer has to file Form I-129, Petition for Nonimmigrant Worker, with the proper USCIS Office.

Family of L-1B Workers

The transferring employee with specialized knowledge may bring his or her spouse and unmarried children who are under 21 years of age along or follow them. Family members may apply for admission in L-2 nonimmigrant classification and, if approved, authorities will grant them the same period of stay as the L-1B employee.

Family members already in the United States seeking a change of status to L-2 classification may apply using Form I-539, Application to Extend/Change Status.

Spouses of L-1B workers are authorized to work incident to status and do not need to apply for a separate work authorization.

Adjustment of Status

The L-1B visa is a dual intent non-immigrant visa. This means that the L-1B visa applicant may have the intent to immigrate to the U.S. and such intent alone cannot be a basis for a denial of the visa application.

An L-1B visa holder may obtain an immigrant visa through an employment-based petition. However, an L-1B visa holder may not qualify for the EB-1C, multinational manager or executive employment-based immigrant visa process, if they did not work in a managerial or executive position outside the U.S.

The L-1B visa application or change of status is a complex process. It is recommended to consult an attorney for practical advice on submitting a successful petition. It is important to establish the qualifying relationship between the U.S. and foreign companies, by submitting relevant and substantial documentation. It is also critical convincing USCIS that the intracompany transferee possesses specialized knowledge by submitting detailed and relevant supporting documentation.

The experienced attorneys at Patel Law Group master the L-1B process. They will help you submit a proper L-1B petition with required supporting documents to increase the chances of approval.

If you are interested in filing an L-1B petition, please contact PLG Partner, Chris Prescott at cprescott@patellegal.com.