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L-1B intracompany transferee with specialized knowledge

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.

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 specifically 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 that the specialized knowledge of the employee should be characterized by unusual qualifications that are not generally possessed by others and a higher level of knowledge that sets the beneficiary apart from the knowledge held by other employees.

There are some additional requirements if the L-1B employee will be stationed primarily at the worksite of an organization other than the petitioning employer or its affiliate, subsidiary, or parent.  In order for the employee to qualify for L-1B classification in this situation, the petitioning 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 seek to send an employee with specialized knowledge to the United States to be employed in a qualifying new office. In that case, besides the general requirements for the L-1B petition, the employer must show that:

• The employer has secured sufficient 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 entering the United States to establish a new office will be allowed a maximum initial stay of one year.  All other qualified L-1B employees will be allowed a maximum initial stay of three years.  For all L-1B employees, 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 five years.

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 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, using Form I-539, Application to Extend/Change Status.

Spouses of L-1B workers may apply for work authorization by filing a 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-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 one of our experienced Immigration Attorneys, either Monique Mutombo at mmutombo@patellegal.com or Chris Prescott at cprescott@patellegal.com.