Law Offices of Jing Tan

L-1 Visa
Preview
The United States L1 visa is a non-immigrant visa which allows companies operating both in the US and abroad to transfer certain classes of employee from its foreign operations to the USA operations for up to seven years. The employee must have worked for a subsidiary, parent, affiliate or branch office of your US company outside of the US for at least one year out of the last three years.

Companies operating in the US can apply to the relevant USCIS service center for an L1 visa to transfer someone to the US from their overseas operations. Employees in this category will, initially, be granted an L-1 visa for up to three years.

Eligibility

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.

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 manager, executive or person with specialized knowledge. You must have worked in that position a total of at least one year out of the past three years. 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 has all four of the following characteristics:

• He or she manages the organization or a department of the organization.
• He or she supervises and controls the work of other supervisory, professional or managerial employees or manages an essential function of the organization.
• He or she has the authority to hire and fire those persons supervised. If none are supervised, the manager must work at a senior level within the organization.
• He or she has the authority to make decisions concerning the day-to-day operations of the portion of the organization which he or she manages.

First-line supervisors are lower management personnel who directly oversee non-management workers. A first-line supervisor is not normally considered a manager unless the employees supervised are professionals. The word "professional" here means a worker holding a university degree.

A manager coming to work for a U.S. office that has been in operation for at least one year also qualifies for a green card as a priority worker.

b. Executives

An executive is defined as a person who has all four of the following characteristics:

• The alien directs the management of the organization or a major part of it.
• The alien sets the goals or policies of the organization or a part of it.
• The alien has extensive discretionary decision-making authority.
• The alien receives 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 qualifies for a green card as a priority worker.

c. Persons with Specialized Knowledge

The knowledge that is referred to in the term "specialized knowledge" covers any knowledge that specifically concerns the employer company, its procedures, products or international marketing methods.

2. 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. branches, subsidiaries, affiliates or joint venture partners. There is also a special category of international accounting firms. For visa purposes, these terms have specific definitions.

a. 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.

b. Subsidiaries

In a subsidiary relationship, one company must own a controlling percentage of the other company, that is, 50% or more. For L-1 purposes, when two companies are in the same corporate or limited form and at least 50% of the stock of a company in the U.S. is owned by a non-U.S. company, or vice versa, this is a classic subsidiary relationship.

c. 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 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.

d. 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 branches of the same company that wish to transfer employees between them, the joint venture relationship is the only one that is practical for L- I qualifying purposes. The ownership of a publicly held company is too vast and diverse to prove any of the other types of qualifying business relationships.

e. International Accounting Firms

The Immigration Act of 1990 made it clear that L-1 visas are available to employees and partners of international accounting firms. In the case of big accounting firms, the partnership's interests between one country and another are not usually close enough for them to qualify as affiliates under normal L-1 visa rules. For this reason, the managers of such companies that could not, in the past, be transferred to U.S. international accounting firms, are now considered qualified to support L-1 visa petitions for their employees. This is provided the firm is part of an international accounting organization with an internationally recognized name. These rules are intended to apply only to a limited number of very large and prominent firms.

How To Apply

An L-1 visa application for foreign nationals must be approved through an INS Regional Service Center and takes four weeks to process. The USCIS then sends the approval notice to a U.S. consulate where the applicant obtains the L-1 visa.

Documentation Requirements

To demonstrate business activity at a professional level, the applicant must submit documentation in the form of a job offer letter from the prospective employer in the United States or Canada, as well as supporting documents such as licenses, diplomas, degrees, certificates, or membership in professional organizations.

As set out in the Immigration and Naturalization Service (INS) regulations under NAFTA, the documentation should confirm the following:

(a) The nature of the professional activity

(b) The purpose of entry

(c) The anticipated length of stay

(d) The educational qualifications or appropriate credentials that demonstrate that the Canadian citizen has professional status

(e) That the Canadian citizen complies with all applicable state laws and/or licensing requirements for the occupation

(f) The arrangements for remuneration for services to be rendered.

Duration of Visa

For a business that is just starting up, an L-1 visa is valid for one year. For businesses that have already been doing business in the United States for a year or longer, the visa is valid for up to three years with two-year extensions available for a total of up to five years for an employee with specialized knowledge, and up to seven years for an executive or manager. L-1 extensions have to be filed in the U.S. at the INS Regional Service Center where the business is located.

Status of Spouse and Minor Children

A spouse and unmarried minor children are eligible for E visas and can also enter under this category.

President Bush, on January 16,, 2002, signed into law two bills (H.R. 2277 and H.R. 2278) allowing spouses of intra-company transferees, treaty traders, and treaty investors to work in the U.S.

H.R. 2277 (PL 107-124) provides work authorization to the spouses of E visa holders. H.R. 2278 (PL 107-125) provides work authorization to the spouses of L visa holders and reduces the required period of prior continuous employment for certain intra-company transferees. Specifically, H.R. 2278 amends INA section 214(c)(2)(A) to provide that in the case of an alien seeking admission under section 101(a)(15)(L), the required one-year period of continuous employment is reduced to six months if the importing employer has filed a blanket petition and met the requirements for expedited processing of aliens covered under such petition.

Servants of the E visa holder can be issued B-1 visas with work authorization

On completing the maximum allowable period in L-1 status, the employee must be employed outside the United States for a minimum of one year before a new application is made for L or H status.

FAQ

Q. Is there any limit on the number of L1 visas available in a year?

A. No.

Q. Can spouses and children of L1 visa-holders work in the USA?

A. L-2 dependant spouses can now obtain a general work authorization. L-2 children cannot work. This work authorization must be applied for separately, though.

Q. Can I move L1 employees to different sites around the US?

A. Yes, provided they remain under your management and control.

Q. How long does it take to get an L1?

A. Usually 2-4 months for a normal L1, 1-3 weeks for an L1 covered by a blanket approval.

Q. Is it possible to speed up the process?

A. Yes. The USCIS has instituted a program called Premium Processing. If the USCIS is paid an extra $1,000 on a separate check, the USCIS guarantees it will adjudicate the petition in 15 days or notify the petitioner if more evidence is needed.

Q. Can the alien come to the USA on a visitor visa or visa-waiver while the L1 petition is being processed?

A. This is possible but not advisable, and under no accounts should the alien risk putting in jeopardy the issue of an L1 visa by engaging in anything that might be construed as work, as this may lead to the alien being accused of visa-fraud either on entry to the US with a visitor visa/visa-waiver or when applying for an L1 visa at the US consulate in their own country.

Q. Can L1 employees work part-time?

A. Yes.

Q. Is there a requirement that I pay L1 workers the 'prevailing wage'?