INTRACOMPANY TRANSFERS (L-1 VISA)
The purpose of the L visa is to permit a qualifying organization to transfer certain types of employees from a non-U.S. location to perform services in the United States for the same organization or its parent, branch, subsidiary, or affiliate. The L-1 visa program allows professionals from a foreign country to transfer to the U.S. In order to qualify, the non-U.S. sending company and the U.S. receiving company must have at least 50% common ownership, or alternatively, one must effectively control the other.
To obtain an L-1 visa, a qualifying organization must submit a petition to the USCIS. Generally, a qualifying organization is any firm, corporation or legal entity (including a partnership) that continues to conduct business both in the United States and at least one other country during the L visa holder’s entire U.S. assignment, including foreign employers actively engaged in international business.
Application Process
The application process for the L-1 visa is a multi-step procedure that requires careful coordination between the foreign company and the U.S. entity, as well as the transferring employee. The process begins with the employer filing Form I-129, Petition for a Nonimmigrant Worker, with the appropriate USCIS service center. This petition must clearly establish the qualifying relationship between the U.S. and foreign company, demonstrating that they are part of the same employer group—such as a parent company, branch, subsidiary, or affiliate.
To support the petition, the employer must provide comprehensive documentation showing that the employee has worked for the foreign company in a specialized knowledge capacity or in an executive or managerial position for at least one year within the three years. Evidence may include payroll records, employment contracts, organizational charts, and performance evaluations.
For specialized knowledge employees, it is essential to demonstrate that the individual possesses particular knowledge of the organization’s products, services, or processes that is not commonly found in the U.S. labor market. For those in a managerial or executive capacity, documentation should highlight the employee’s authority to direct a major component of the organization, establish organizational goals, and exercise discretionary decision making, while being subject to only general supervision from higher-level executives.
Once the petition receives approval from USCIS, the next step is for the employee to apply for an L-1 visa at a U.S. embassy or consulate in their home country. The visa applicant must submit a completed application form, along with supporting documents such as a valid passport, birth certificate, and, if applicable, a marriage certificate for accompanying family members. The applicant will also need to pay the visa issuance fee and attend a visa interview, where they may be asked about their role, specialized knowledge, or managerial or executive responsibilities within the qualifying organization.
Canadian citizens benefit from a streamlined process and may apply for L-1 status directly at a U.S. port of entry, rather than through a U.S. embassy or consulate. In these cases, the applicant must present an approved blanket petition approval notice, along with documentation verifying their employment and qualifications.
Employers with an approved blanket petition can further expedite the process for qualified employees. Under a blanket L petition, eligible employees can apply for an L-1 visa using the blanket petition approval notice, reducing the need for individual petition approval for each transfer.
Given the complexity of the L-1 visa application process and the importance of providing thorough and accurate documentation, it is highly recommended that both employers and employees consult with experienced immigration services professionals. Proper preparation can help ensure a smooth petition approval and visa issuance process, allowing foreign companies to efficiently transfer specialized knowledge professionals or executives to the U.S. for essential functions and day to day operations.
The L-1 visa remains a nonimmigrant classification, intended for temporary assignments in the United States. However, it is a valuable tool for foreign entities seeking to leverage the expertise of their specialized knowledge employees or managerial and executive staff in the U.S. market. By following the correct procedures and meeting all requirements, companies can successfully navigate the L-1 application process and support their international business objectives.
One-Year Employment Requirement
The petition submitted on behalf of the employee must indicate that the employee has been employed with the organization abroad for at least one of the past three years (employment abroad is a key eligibility criterion for the L-1 visa) as a manager, an executive, or in a position that requires specialized knowledge. It is not necessary that the employee perform the same function while working in the United States, as long as the employee performs one of the above three permitted functions.
Required to have continuous full-time employment and not continuous part-time employment for the one year preceding entry into the U.S. Cannot aggregate part-time employment to meet the prior one-year requirement. However, full time services divided among affiliated companies, each employing the employee for part of the year period, may be counted in the aggregate.
One Year Preceding Admission vs. One Year Preceding Petition
On Nov. 15, 2018, USCIS issued a clarifying policy memorandum on several issues regarding the one-year-abroad provision. The memo sets forth several principles: (1) the one year abroad is measured from the time of filing the L-1 petition not admission so that an applicant must have one year of the prior three years abroad prior to filing an L-1 petition; (2) periods of employment in the U.S. even for the petitioning organization do not satisfy the one-year abroad requirement nor can any time spent in the U.S. in any capacity; (3) brief trips into the U.S. on other visas such as a B-1 or B-2 do not interrupt the one-year period but are not counted toward it; for example, a person who spends 60 days in the U.S. over a year period would not accrue the one year until after one year and 60 days were reached but each entry does not interrupt the one-year period requiring the applicant to start the one year anew; (4) lawfully working for the qualifying organization in the U.S. in another capacity such as an E-2 or H-1B does not count in computing the three year period; for example, if a beneficiary worked in the U.S. in H-1B status for the qualifying organization from Jan. 2, 2017 to Jan. 2, 2018 and then the petitioner filed for L-1 for the employee, the pertinent three year period would be Jan. 1, 2014 to Jan. 1, 2017 thus not counting the year in H-1B status; (5) periods in the U.S. as an L-2, or F-1 (including OPT), or not being employed or being employed with another unrelated company do count in computing the three years and therefore do not result in an adjustment for the three years as does employment in the U.S. for the qualifying organization; (6) if a beneficiary takes more than a two year break in employment from the qualifying employer, he must initiate a new full one year of employment with the qualifying entity and does not get “credit” for any time period previously employed; (7) any extension of L-1 or change of status to L-1B or L-1A require that the beneficiary prove he or she initially met the one-year requirement.
L-1A: Executive or Managerial Capacity
Generally, a manager is defined as someone who: (i) manages the organization, a function, or some part thereof; (ii) supervises other managerial, supervisory or professional employees, or manages an essential function, department or subdivision; (iii) has the power to hire and fire employees; and (iv) has day-to-day discretion with respect to the operation of the organization or a part thereof. Managerial employees are those who supervise and control the work of other managerial, supervisory, or professional staff, and supervising employees is a core responsibility of managerial roles.
An executive is a person who: (i) directs the management of the organization; an employee who primarily directs major components or functions is considered to be acting in an executive capacity; (ii) establishes policies and goals, and establishes organizational goals as a key executive function; (iii) has discretionary decision-making capacities; and (iv) is only supervised by higher level executives or the organization’s board of directors.
L-1B: Specialized Knowledge Workers
The L-1B visa is specifically designed for intracompany transferees who possess specialized knowledge that is critical to the employer’s products, services, or techniques.
A person with specialized knowledge is someone who has: (i) uncommon knowledge of the organization’s products, services, research, equipment, techniques, management or other interests and its application in international markets; or (ii) an advanced level of knowledge or expertise in the organization’s processes and procedures. However, not all high-level experience or skill, such as that of a skilled employee operating equipment, is necessarily specialized knowledge.
A beneficiary may establish specialized knowledge by possessing either special or advanced knowledge, or both. The employee must possess specialized knowledge relevant to the organization’s processes. A beneficiary’s knowledge does not have to be proprietary, unique, or restricted solely to the petitioning organization to qualify as specialized knowledge.
Determining whether a beneficiary has special knowledge involves evaluating the unique knowledge the beneficiary possesses about how the petitioning organization manufactures, produces, or develops its products, services, research, equipment, techniques, management, or other interests—essentially, its products or services. Determinations concerning advanced knowledge, on the other hand, require review of the beneficiary’s knowledge of the specific petitioning organization’s processes and procedures, particularly as demonstrated by skilled employees with advanced understanding of these processes.
Regarding either special or advanced knowledge, the petitioner must typically demonstrate that the beneficiary’s expertise is not widely held within the industry.
Determining whether knowledge is special or advanced inherently requires a comparison of the particular knowledge possessed by the beneficiary against that of others. The petitioner bears the burden of establishing such a favorable comparison. Because special knowledge concerns knowledge of the petitioning organization’s products or services and its application in international markets, the petitioner may meet its burden through evidence that the beneficiary has knowledge that is distinct or uncommon in comparison to the knowledge of other similarly employed workers in the particular industry.
Blanket L-1
In certain circumstances, a company may file an L-1 blanket petition seeking continual approval of itself, its parent, and some or all of its branches, subsidiaries, affiliates, and other qualifying organizations as qualifying organizations for purposes of sponsoring persons for L-1 intracompany transferee status.
To qualify, the company and each of its related entities must be engaged in commercial trade or services. Additionally, the company must have an office in the United States that has been doing business for more than one year, and at least three domestic and foreign branches, subsidiaries, and affiliates. The U.S. company must also have: (i) obtained approvals for at least ten “L” visa professionals in the previous twelve months; (ii) U.S. subsidiaries or affiliates with combined annual sales of at least US $25 million; or (iii) a U.S. workforce of at least 1,000 employees.
Once the L-1 blanket petition is approved, the company does not have to file individual petitions with the USCIS for each employee. Rather, a person who meets the requirements for intracompany transferee status may obtain an L-1 visa at the U.S. Consulate or Embassy with jurisdiction over his or her residence abroad. Petitions under the blanket process are typically filed with the appropriate regional service center. Once a person is admitted under an approved L-1 blanket petition, he or she may be reassigned to any organization listed within the approved petition without notifying the USCIS, as long as the person is performing the same job duties.
Duration
Generally, the L-1 visa is granted, at the outset, for a maximum of three years, and can be renewed in two-year increments. For persons who are transferred to the United States to work for a new office, the USCIS will approve L-1 Status for only one year at the outset, and it is necessary to demonstrate sufficient physical premises for the new office to be approved. The maximum duration of stay for specialized knowledge professionals is five years; the maximum duration permitted for executives and managers is up to seven years. Spouses and minor children of L-1 visa holders may stay in the U.S. for the same period as the principal L-1 visa holder. Unlike the H-1B visa program, the beneficiaries of L-1 status cannot extend status by pursuing lawful permanent residence application (commonly called “green card”) in the United States.
Dependents
Spouses and minor children of L-1 visa holders may receive L-2 dependent visas. L-2 spouses are considered employment authorized based on their valid L nonimmigrant status; this employment authorization is granted incident to their status and does not require a separate work permit. L-2 spouses are allowed to work for any employer in the United States.
