A What is L-1 visa
The L-1A visa is designed for intra-company executive and managerial transferees relocating to the United States. U.S employer can be companies that operate for more than one year or new companies (usually with a one-year visa period). The visa period for L-1 visa varies according to the company’s situation. L-1 non-immigrant visa applications for the first time can be granted for a period of one year or three years .If the US affiliated company is less than one year, only one year visa can be obtained. Foreign applicants can obtain a non-immigrant visa for up to three years if they meet a one-year requirement and have actual business and staff in an affiliated company in the United States. With extensions, the maximum stay of L-1A visa is seven years. The maximum stay of L-1B visa is five years.
In the application of L-1 visas, qualifying aliens are the beneficiaries of L-1 applications, Qualifying businesses are the sponsoring petitioners.The beneficiary must be employees who have worked for a subsidiary, parent, affiliate, or branch office of the company for at least one year of the three years prior to filing an L-1 petition. The petitioner must be a parent company, child company, or sister company of the foreign company.
There are two types of L-1 visas—the L-1A and the L-1B—each of which has different qualification requirements. The L-1A is specifically designed for company bigwigs like executives or upper-level management, while the L-1B is reserved for intra-company transfers of employees with “specialized knowledge.”L-1B holders cannot apply for an EB-1C visa
A petitioner that meets relevant requirements may file a blanket petition seeking continuing approval of itself or all of its parent, branches, subsidiaries, and affiliates as qualifying organization. L Visa Blanket Petition is only applicable to L-1A, which is a simple and fast procedure for large companies. For More Information, please click Blanket L-1A.
The spouse and any unmarried children under the age of 21 of L-1 holders are eligible for L-2 visas. The L-2 classification allows L-1 dependents to live with L-1 holders in the United States for the duration of their stay. L-2 holders are able to attend school, but in order to work legally, they must apply for an Employment Authorization Document (EAD).
B The requirements of L-1 visa
- General Requirements for the L-1 Petitioner: The Employer
1.“qualifying relationship”
In L-1 visa applications, there must be at least two companies – a) companies in the United States and b) companies outside the United States. The relationship between the two companies can be:
1) Parent-subsidiary company: parent company accounts for more than 51% of the shares of subsidiary company;
2)Affiliated affiliations: For example, third-party holding more than 50% of U.S. domestic and foreign companies.
3) Joint venture
Classic cases:Matter of Hughes,18 I&N Dec. 280 (Comm.1982):Joint venture company, American company has 50% control of management and policy.
9 FAM 41.54 N.6.1-4b. : If two parent companies own 50% of the company (joint venture), the joint venture company is a subsidiary of two parent companies.
2.Doing business
“Doing business” is defined as regular, systematic, and continuous providing of goods or services. “Doing business” does not include mere presence of an agent or office in the U.S. and abroad.
- L-1A Employee Requirements
1.The alien employee must have worked abroad for the overseas company for a continuous period of one year within the three years immediately preceding his or her admission to the United States.
Professional Attorney Analysis: In November 2018, USCIS released the latest Memo to refine the this requirement.
a). The one continuous year of qualifying employment must occur outside the United States
The one-year foreign employment requirement is only satisfied by the time a beneficiary spends physically outside the United States working full-time for the petitioner or a qualifying organization.5 A petitioner cannot use any time that the beneficiary spent in the United States to meet the one-year foreign employment requirement, even if the qualifying foreign entity paid the beneficiary and continued to employ the beneficiary while he or she was in the United States. Furthermore, the one continuous year of foreign employment must be qualifying; that is, the petitioner must demonstrate that the beneficiary worked abroad during that time period in a managerial, executive, or specialized knowledge capacity.
b). Brief trips to the United States for business or pleasure do not interrupt the one continuous year
While a qualifying foreign entity employs a beneficiary abroad, brief trips to the United States for business or pleasure in B-1 or B-2 status toll6 the one continuous year of employment abroad. Therefore, in such cases, officers should subtract the number of days the beneficiary spent in the United States from the time the qualifying foreign entity employed the beneficiary abroad. For example, if the qualifying foreign entity began to employ the beneficiary on January 1, 2016, and the beneficiary made brief trips to the United States that year for a total of 60 days, the beneficiary would need to accrue at least an additional 60 days of qualifying employment abroad after January 1, 2017, in order to meet the one-year foreign employment requirement.
c). Time the beneficiary spent working “for” the qualifying organization in the United States results in an adjustment of the three-year period for determining whether the beneficiary has met the one-year foreign employment requirement
By regulation, time a beneficiary spent working in the United States “for” a qualifying organization does not count towards the one-year foreign employment requirement; however, this time does result in an adjustment of the three-year period (8 CFR 214.2(l)(1)(ii)(A)). A non-immigrant in the United States will be considered to have been admitted to work “for” the qualifying organization if he or she is employed by that organization as a principal beneficiary of an employment-based non-immigrant petition or application, such as H-1B or E-2 executive, supervisory, or essential employee.7 For example, if a beneficiary worked in the United States in valid H-1B status for a qualifying organization from January 2, 2017, through January 2, 2018, and the petitioner filed for L-1 non-immigrant status for the employee on January 2, 2018, the pertinent three-year period will be from January 1, 2014, to January 1, 2017.
d). Periods of employment with the qualifying organization in the United States as a dependent or student do not result in an adjustment of the three-year period for purposes of determining whether the beneficiary has met the one-year continuous foreign employment requirement
Conversely, the time a beneficiary spent working while in a dependent status will not result in an adjustment of the three-year period. For example, time spent by a beneficiary in L-2 status will not result in an adjustment of the three-year period, because the beneficiary was admitted as an L-2 to join the L-1 principal and not to work “for” a qualifying organization. Likewise, if a beneficiary was admitted as an F-1 non-immigrant and later applies for optional practical training (OPT) employment with the qualifying organization, the time spent in F-1 non-immigrant status will not result in an adjustment to the three-year period, because the purpose of admission was for study and not to work “for” the qualifying organization. Moreover, this would not change even if the qualifying organization financed the F-1 non-immigrant’s studies. In neither of these instances should the three-year period be adjusted.
e). Periods of time in the United States not working or working for an unrelated employer do not result in an adjustment of the three-year period during which the beneficiary must have been continuously employed for one year abroad
Periods of time the beneficiary spent in the United States without working (except for brief visits for business or pleasure in B-1 or B-2 status), or while working for an unrelated employer, interrupt the one continuous year foreign employment requirement, and officers should not adjust the three-year period. The relevant point in time for an officer to determine whether a beneficiary satisfies the one-year foreign employment requirement is the date on which the petitioner filed the initial L-1 petition, regardless of when the beneficiary was, or will be, admitted to the United States.
f). The time a beneficiary spent in the United States, either not working or working for an unrelated employer, will not result in an adjustment of the three-year period.
A two-year break in employment with the qualifying organization during the three years preceding the filing of the L-1 petition will render the beneficiary unable to meet the one-year foreign employment requirement.
g). When the petition requests an extension of L-1 status (including a change from L-1A to L-1B status, or a change from L-1B to L-1A.status), the requirement must have been met at the time of the filing of the initial L-1 petition.
2.The employee must have been employed abroad in an executive or managerial position, otherwise known as a “qualifying position.”
3.The employee must be relocating to the U.S. to provide services in an executive or managerial capacity for a branch of the same employer or one of its qualifying organizations.
1).The employee must be qualified for the position by virtue of his or her education and experience.
2).The employee must intend to depart the United States upon completion of his or her authorized stay.
- executive position
Making decisions with wide latitude and without much oversight.
1) Managing the whole company, or the company’s important components, institutions.
2) Setting organizational goals or policies.
3) Making decisions on major decisions of the company;
4) Only accept the general supervision of the company’s top management, including the higher executives and the board of directors. - managerial position
Supervising and controlling the work of professional employees and to manage the organization, or a department, subdivision, function, or component of the organization.
1) Managing an organization, department, institution or part of an organization;
2) Supervising and controlling other supervisors, managers or professionals. Professionals listed in the Immigration Act include architects, engineers, lawyers, physicians, surgeons, and teachers from various educational institutions. Of course, it’s not just about these professions.
3) Having the power to appoint and dismiss employees, or have the power to recommend personnel (for employees directly under their supervision), or manage a core department within the organization;
4) General management of day-to-day company affairs.
Please note that if a lower-level supervisor is directly managed by another higher-level supervisor, the lower-level supervisor generally does not meet the requirements of L-1A. However, if the supervisor manages the “professional” mentioned above, then he meets the requirements of L-1A. For example, if she/he supervises a lawyer or accountant in the company, then even if she/he is not a senior manager, she/he meets the requirements of L-1A.)
- L-1B Employee Requirements
1.The employee must have worked abroad for the overseas company for a continuous period of one year within the three years immediately preceding his or her admission to the United States.
2.The employee must seek to enter the United States to render services in a specialized knowledge capacity to a branch of the same employer or one of its qualifying organizations.
3.The employee must be qualified for the position by virtue of his or her specialized knowledge.
4.The employee must intend to depart the United States upon completion of his or her authorized stay.
Specialized knowledge
Employees have special expertise in products, services, technology and other skills required by foreign companies, or they have a deep understanding of the specific processes of foreign companies (more advanced than their counterparts).
According to USCIS, beneficiaries seeking L-1B classification will be determined to have specialized knowledge if they have either “special” knowledge or “advanced” knowledge (or both).
The specialized knowledge required in applying for L-1B refers to the special knowledge or that individuals possess about the products, services, research, equipment, technology, management of a multinational corporation and application in the international market; or the advanced knowledge in the operation and procedures of the multinational corporation. USCIS lists qualified occupations, such as architects, engineers, lawyers, physicians, surgeons, teachers in various educational institutions. But it is not limited to these professions.
Note: a new company which is established in the United States
If alien employee plans to go to the United States to develop business or prepare for a new company,there is no need to prove the existence of an American company or business dealing between overseas company and American company, but needs to meet the following requirements:
1.The employee must have worked abroad for the overseas company for a continuous period of one year within the three years immediately preceding his or her admission to the United States.
2.Having sufficient funds to settle the new company’s office.
3. Within one year of L-1 visa approval,the employee must have been employed abroad in an executive or managerial position, otherwise known as a “qualifying position.(not applicable to L-1B)
Note：L Visa Blanket Petitions requirements
- The employer must prove the following:
- The company must already have an office in the United States that has been operating for at least one year.
- The company must have at least three domestic and/or foreign branches, affiliates, or subsidiaries.
- In addition, the company must meet one of the following three conditions:
1) The company must have obtained a minimum of 10 L-1 approvals in the 12-month period prior to filing a blanket petition.
2) The company and its branches, subsidiaries, or affiliates must have combined annual sales of at least $25 million dollars.
3) The company has a workforce in the United States of at least 1,000 employees.