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L-1 Visas

The L-1 visa is for intra-company transferees in managerial or executive positions (L-1A), or positions utilizing specialized knowledge (L-1B). It enables a U.S. employer to transfer an executive or manager or an employee with specialized knowledge from one of its affiliated foreign offices to one of its offices in the United States. It is not a general work permit that allows foreign nationals to engage in unrestricted employment. It requires sponsorship from a U.S. employer or petitioner, and is one of the few nonimmigrant visas which allows immigrant intent.
 

Executive capacity generally refers to the employee’s ability to make decisions of wide latitude without much oversight. As an executive, the L-1 executive must primarily:

    1. Direct the management of the organization or a major component or function of the  organization;
    2. Establish the goals and policies of the organization, component or function;
    3. Exercise wide latitude in discretionary decision-making; and
    4. Receive only general supervision or direction from higher level executives, the board of directors, or stockholders of the organization.

 

Managerial capacity generally refers to the ability of the L-1 manager to:

    1. Manage the organization, or a department, subdivision, function, or component of the organization;
    2. Supervise and control the work of other supervisory,  professional or managerial employees, or manage an essential function within the organization, or a department, or subdivision of the organization;
    3. Have the authority to hire and fire or recommend those as well as other personnel actions (such as promotions and leave authorization) if another employee or other employees are directly supervised; if no other employee is directly supervised, functions at a senior level within the organizational hierarchy or with respect to the function  managed; and
    4. Exercises discretion over day-to-day operations of the activity or function for which the employee has authority.

 

Specialized knowledge (SK) means special knowledge possessed by an individual of the petitioning organization’s product, service, research, equipment, techniques, management, or other interests and its application in international markets, or expertise in the organization’s processes and procedures. Such knowledge is beyond the ordinary and not commonplace within the industry or the petitioning organization. In other words, the employee must be more than simply skilled or familiar with the employer’s interests.

The following can be useful to determine if someone has specialized knowledge:

    1. Possessing specialized knowledge that is “different from that generally found in the particular industry.”
    2. Possessing knowledge that is “valuable to the employer’s competitiveness in the marketplace.”
    3. Is qualified to contribute to the U.S. employer’s knowledge of foreign operating conditions as a result of specialized knowledge not generally found in the industry.
    4. Possessing knowledge which normally can only be gained through prior experience with that employer.
    5. Employment abroad in a capacity involving assignments that have significantly enhanced the employer’s productivity, competitiveness, image or financial position.
    6. Possessing knowledge of a process or product that either is sophisticated or complex, or of a highly technical nature, although not necessarily unique to the firm.
    7. Possessing knowledge of a product or process which cannot be easily transferred or taught to another individual without significant economic cost or inconvenience (because, for example, such knowledge may require substantial training, work experience or education).

The common theme for SK cases is that the knowledge which the person possesses, whether it is knowledge of a process or a product, would be difficult to impart to another individual without significant economic inconvenience to the United States or foreign firm.

 

Eligibility

Both the U.S. employer and the foreign national employee must meet certain requirements.

The employer must:

  • Have a qualifying relationship with a foreign company (parent company, branch, subsidiary, or affiliate, collectively referred to as qualifying organizations); and
  • 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 worker. While the business must be viable, there is no requirement that it be engaged in international trade.

Doing business means the regular, systematic, and continuous provision of goods and/or services by a qualifying organization.  It does not include the mere presence of an agent or office of the qualifying organization in the United States and abroad.

A qualifying organization is one of the following:

    • Parent means a firm, corporation, or other legal entity which has subsidiaries.
    • Branch means an operating division or office of the same organization housed in a different location.
    • Subsidiary means a firm, corporation, or other legal entity of which a parent owns, directly or indirectly, more than half of the entity and controls the entity; or owns, directly or indirectly, half of the entity and controls the entity; or owns, directly or indirectly, 50 percent of a 50-50 joint venture and has equal control and veto power over the entity; or owns, directly or indirectly, less than half of the entity, but in fact controls the entity.
    • Affiliate means:
        1. One of two subsidiaries both of which are owned and controlled by the same parent or individual, or
        2. One of two legal entities owned and controlled by the same group of individuals, each individual owning and controlling approximately the same share or proportion of each entity, or
        3. In the case of a partnership that is organized in the United States to provide accounting services along with managerial and/or consulting services and that markets its accounting services under an internationally recognized name under an agreement with a worldwide coordinating organization that is owned and controlled by the member accounting firms, a partnership (or similar organization) that is organized outside the United States to provide accounting services shall be considered to be an affiliate of the United States partnership if it markets its accounting services under the same internationally recognized name under the agreement with the worldwide coordinating organization of which the United States partnership is also a member.

The employee must:

  • Generally have been working for a qualifying organization abroad for at least one of the last three years immediately preceding his or her admission to the United States in a managerial, executive or specialized knowledge capacity; and
  • Be seeking to render services in an executive or managerial capacity or specialized knowledge capacity for a qualifying organization in the United States.

 

New Office

The L-1 visa also allows foreign companies to send an employee as a manager or executive to the United States to establish a U.S. office provided that sufficient physical premises to house the new office have been secured.  The U.S. position does not have to be the same position as the overseas assignment. Furthermore, the foreign company must also show that the intended U.S. office will support an executive or managerial position within one year of the approval of the petition.

 

Validity

An L-1 visa may be issued for up to a 3-year period, except where the L-1 worker is admitted to establish a new office, in which case the visa is issued for 1 year. L-1 visas may be extended in 2-year increments to a maximum of 7 years for L-1A (Manager or Executive) and 5 years for L-1B (Specialized Knowledge).

 

Blanket L Petitions

Certain organizations may establish the required intra-company relationship in advance by filing an L-1 blanket petition with USCIS. In order to establish eligibility for Blanket L certification, the employer:

  • And each of the qualifying organizations must be engaged in commercial trade or services;
  • Must have an office in the United States which has been doing business for one year or more;
  • Must have three or more domestic and foreign branches, subsidiaries, and affiliates;
  • Must meet one of the following criteria;
      • Along with the other qualifying organizations, have obtained at least 10 L-1 approvals during the previous 12-month period; or
      • Have U.S. subsidiaries or affiliates with combined annual sales of at least $25 million; or
      • Have a U.S. work force of at least 1,000 employees.

Managers, executives and specialized knowledge professionals (i.e. someone with a professional degree) may apply under the Blanket L program.

The approval of a Blanket L petition provides an employer with the flexibility to transfer eligible employees to the United States quickly and on short notice without having to file an individual petition with USCIS. Based on the pre-approved Blanket L, employees apply directly at a U.S. embassy or consulate abroad. Canadian applicants have the added advantage as they can apply directly at a port-of-entry (i.e. airport or land border).

 

L-1 Extension of Status

The timely filing of an L-1 extension petition automatically authorizes the L-1 worker to continue working for the same employer for up to 240 days (but not more) starting from the current L-1 expiration date, or until the petition for extension is adjudicated, whichever comes first — this is also known as the “240-day” rule.

 

Accompanying Family Members

Immediate family members of L-1 visa holders, such as spouses and minor children under 21 years of age are eligible for L-2 visas.  The L-2 derivative visa allows the visa holder to attend school in the United States. Spouses holding an L-2 visa are eligible to apply for unrestricted employment authorization.

 

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