L-1 VISAS FOR MANAGER, EXECUTIVES AND SPECIALIZED KNOWLEDGE WORKERS
INTRODUCTION
The L1 visa allows foreign companies to transfer executives and managers including business owners and specialized knowledge employees to a new or existing US office.
L-1A Visa: Executive or Manager
L-1A visa category allows employers based in the United States to transfer executives or managers from an affiliated foreign office to one of their offices in the United States. L-1A visa also allows foreign companies, who have not yet been established in the United States, to send executives or managers to the United States with the intention of establishing a new office.
L-1B Visa: Specialized Knowledge Professional
Much like L-1A visa classification, L-1B classification status allows employers based in the United States to transfer employees from foreign offices, with specific knowledge pertaining to the company, to one of their affiliated offices in the United States. L-1B visa classification also allows foreign companies, who have not yet been established in the United States, to send an employee with specific knowledge pertaining to the company to the United States, with the intention of establishing a new office.
Qualifications of the employer
To qualify for L-1A or L-1B visa the employer must:
• Have a qualifying relationship with a foreign company
• Currently, or will be, doing business as an employer in the United States and at least one other foreign country through a qualifying organization for the duration of their stay as an L-1 in the United States.
Establishing “qualifying relationship” in the context of an L-1 classification
A company is considered to have a qualifying relationship sufficient to sponsor an L-1 visa when the company is either a parent, branch, affiliate or subsidiary of a foreign firm operating abroad.
Parent: A parent company is a firm, corporation, or other legal entity which has subsidiaries.
Example 1: A foreign parent must own at least 50% of a U.S. subsidiary, and have veto powers over the subsidiary;
Example 2: A U.S. parent must own at least at least 50% of the foreign subsidiary, and have veto powers over the subsidiary:
Example 3: Affiliate U.S. and Foreign companies must each be at least 50% owned by the same parent entity.
Subsidiary: A subsidiary is 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: A branch refers to 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.
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 five friends jointly owned Company A, with each person owning 20%, and jointly owned Company B, with each person owning 20%, these two companies would be affiliates.
For immigration purposes, the regulations also allow certain companies offering accounting, managerial and/or consulting services under an internationally recognized name to be considered affiliates of accounting companies outside the U.S. that use the same internationally recognized name, where both companies have agreements with the same worldwide coordinating organization partnership that is owned and controlled by member accounting firms.
Qualifications of the employee
To qualify for L-1A or L-1B nonimmigration classification the employee must:
• Have been working for the qualifying foreign organization for at least one year preceding three years of admission to the United States
• Be seeking entrance to the United States for the purpose of conducting executive or managerial business for a branch of the same employer or one of its qualifying organizations
• Be seeking entrance to the United States for the purpose of providing specialized knowledge for one of its qualifying organizations.
In these scenarios, executive capacity refers to the wide range of decision making authority an individual possesses, without much oversight. Managerial capacity refers to one’s ability to control the work of professional employees and manage the organization. It may also refer to one’s ability to manage essential functions of the company. Specialized knowledge refers to special knowledge possessed by an individual about the qualifying organizations product, service, research, equipment techniques, management, interests, procedures and processes.
New Office’s
Foreign employers seeking to send an executive or manager to the United States to establish a new office must show:
• The employer has acquired a sufficient physical space to house the new office
• The employee has been an executive or manager for at least one continuous year preceding the filing of the petition
• The intended U.S. office will support an executive or managerial position within one year of the approval of the petition.
Period of stay
Qualified employees entering the United States to set up a new office will be given one year stay. All other employees entering the United States will be granted up to three years stay. Employees can request an extension, given in increments of two years, for up to seven years total.
Family Members
Employees may be accompanied by their spouses and children who are under the age of 21. Spouses and children can file for L-2 nonimmigration status, and are generally granted the same amount of stay as the employee.
Spouses of the employee may file petition with USCIS to request work authorization. If approved there is no limit as to where the L-2 spouse can work.
Blanket petitions
Some organizations who wish to establish the required intracompany relationship before filing for L-1 nonimmigration status may file a blanket petition. To qualify for a blanket L certification:
• The petitioner and qualifying organizations must be involved in commercial trades or services
• The petitioner has an established office in the United States in which they have been doing business for at least one year
• The petitioner has three or more foreign branches, subsidiaries, and affiliates
• The petitioner along with the qualifying organizations meets one of the following standards:
o Have obtained at least 10 L-1 approvals within the last 12 months
o Have U.S. subsidiaries or affiliated with combined annual sales of at least $25 million
o Have an established U.S. work force of at least 1,000 employees
Approval of blanket petitions does not guarantee the approval of L-1 nonimmigration classification. However, it does provide the employer with the ability to send employees to the U.S. quickly and last minute, without having to file individual petition forms with USCIS.
Where an L-1 visa is required
Once the blanket petition is approved, the employer only needs to complete form I-129S, and send it to the employee along with a copy of the blanket petition Approval Notice. The employee may then present it to a consular officer in connection with an L-1 visa application.
Canadians with an approved blanket petition
Canadian citizens, with an approved blanket petition who are exempt from L-1 visa requirements may complete form I-129S and present it to a U.S. Customs and Border Protection Officer at certain points of entry on the U.S. / Canada land border, or at a preflight inspection station in Canada, in connection with an L-1 visa application.
Optional filing of form I-129S
If the prospective employee is vis-exempt, their employer may file form I-129S with the USCIS service center that approved their blanket petition instead of CBP.
Metin Caglar Esq, Business visa articles.