L-1A intracompany manager or executive transferee
The L-1 visa is a temporary work visa that allows a U.S. employer to transfer an employee from a qualified foreign company to an office in the U.S. The visa can also be issued when a foreign employee is sent to the U.S. to work and open a U.S. office of the foreign company. 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:
- The L-1A visa, for intracompany transferees who work in a managerial or executive position in a company that is located outside the United States;
- The L-1B visa, for intracompany transferees who work in positions that require specialized knowledge.
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:
- Currently, be, or will be, doing business as an employer in the United States and in at least one other country directly or through a qualifying organization for the duration of the beneficiary’s stay in the United States as an L-1. While the business must be viable, there is no requirement that it be engaged in international trade; and
- Have a qualifying relationship with a foreign company (parent, branch, subsidiary, or affiliate, collectively referred to as qualifying organizations).
A U.S. employer petitioning for its employee to be classified as an L-1 visa holder should pay close attention to the legal terms “doing business” and “qualifying relationship”:
- Doing business: For purposes of the L-1 visa, a U.S. employer is considered doing business when it is regularly, systematically, and continuously providing goods and/or services. 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.
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 is 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-1A visa. Below are the requirements:
Specific requirements for L-1A visa:
Two general requirements are necessary to qualify for the L-1A Intracompany manager or executive transferee. To get an L-1A petition approved a manager or executive transferee must:
- Generally, 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 service in an executive or managerial capacity for a branch of the same employer or one of its qualifying organizations.
The L-1A intracompany transferee must specifically prove that he holds either a manager or executive position abroad and that he will keep a similar position at the U.S. company.
- An executive position generally refers to the employee’s ability to direct the management of the company, establish goals and policies of the organization, component, or function, make decisions of wide latitude without much oversight;
- A managerial position generally refers to the ability of the employee to supervise and control the work of other supervisory, managerial or professional employees and to manage the organization, or a department, subdivision, function, or component of the organization. It may also refer to the employee’s ability to manage an essential function of the organization at a high level, without direct supervision of others.
In many cases, L-1A applicants qualify as managers by their ability to supervise and control the work of professional employees. A professional employee is an employee who has at least a bachelor’s degree in a specific field and holds a position specifically requiring that degree.
A foreign company can also seek to send an employee to the United States as an executive or manager to establish a new office. In that case, the employer must show that:
- The employer has secured sufficient physical premises to house the new office;
- The executive or manager-employee has been employed for one continuous year in the three-year period preceding the filing of the petition in an executive or managerial capacity, and the proposed employment involves executive or managerial authority over the new operation; and
- The intended U.S. office will support an executive or managerial position within one year of the approval of the petition.
Period of Stay for L-1As
L-1A approvals are generally for a maximum of three years. However, qualified employees entering the United States to establish a new office will be allowed a maximum initial stay of one year. For all L-1As, requests for extension of stay may be granted in increments of up to an additional two years, until the employee has reached the maximum limit of seven years.
To petition for an L-1A visa, the U.S. employer has to file Form I-129, Petition for Nonimmigrant Worker, with the proper USCIS Office.
Family of L-1A Workers
The transferring executive or manager-employee may be accompanied or followed by his or her spouse and unmarried children who are under 21 years of age. Such family members may seek admission in L-2 nonimmigrant classification and, if approved, generally will be granted the same period of stay as the employee.
If these family members are already in the United States and seeking a change of status to or extension of stay in L-2 classification, they may apply collectively, with a fee, on a Form I-539, application to change/extend nonimmigrant status.
Spouses of L-1A workers may apply for work authorization by filing Form I-765, Application for Employment Authorization with a fee. If approved, there is no specific restriction as to where the L-2 spouse may work.
Adjustment of Status
The L-1A visa is a dual intent non-immigrant visa. Generally, nonimmigrant visa applicants are “presumed to be an immigrant” and must provide satisfactory proof that they are not immigrating to the U.S. There is no such requirement for an L-1A visa. This means that having a pending immigrant visa petition does not disqualify an L-1A visa applicant. Consequently, many L visa holders eventually apply for a green card (that may involve filing permanent labor certification, if needed, I-140 petition, etc.) and for adjustment of status in the U.S. or get an immigrant visa abroad. Any of those actions will not be the basis for denying an L1 admission in the U.S.
An L-1A visa holder may obtain an immigrant visa through the EB-1C, multinational manager or executive employment-based immigrant visa process. The requirements for employment-based immigration under the EB-1C immigrant scheme are similar to the requirements for the L-1A visa, and they do not require a Labor Certification. The U.S. employer needs to have been established in the US for at least one year before the EB-1C application.
The L-1A visa application or change of status is a complex process. It is recommended to consult an experienced 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 to submit detailed and relevant supporting documentation showing that the intracompany transferee is holding and will keep holding a managerial or executive position.
The experienced attorneys at Patel Law Group master the L-1A process. They will help you submit a proper L-1A petition with required supporting documents to increase the chances of approval. If you are interested in filing an L-1A petition please contact one of our experienced Immigration Attorneys, either Monique Mutombo at firstname.lastname@example.org or Chris Prescott at email@example.com.