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 IMMIGRATION:
L-1 Visa - Intracompany Transferees
The "L-1" Intracompany Transferee Visa is authorized by Section
101(a)(15)(L) of the Immigration and Nationality Act to facilitate
the transfer of executive, managerial or specialized knowledge personnel
from overseas to a U.S. parent, subsidiary, affiliate, or branch.
In order to qualify an Intracompany Transferee, the U.S. company
petitioner must document that the foreign national employee has
been employed by an overseas parent, affiliate, subsidiary or branch
of the U.S. Petitioning Company, as an executive, manager, or a
person with specialized knowledge about the company's proprietary
procedures and methodology, for at least one year out of the three
years prior to the filing of the "L-1" Visa Petition. (Certain "blanket
petitions" have a six month requirement - not discussed here, as
these are only for extremely large companies that have a very high
volume of L-1 visa personnel.)
Note: The immigration service is concerned that the "L-1" category
is being used by owners of small businesses abroad who "transfer"
themselves to the United States, in the process shutting down the
foreign operation, which can no longer function without their physical
presence abroad. The foreign company must continue to do business
abroad during the entire period of the foreign national's stay in
the United States as an "L-1" Intracompany transferee. This fact
must be fully documented at the time of the initial filing, and
upon each visa petition renewal application.
There are time limitations on how long an alien can have an L-1
visa. An "L-1" who has spent five years in the United States in
a specialized knowledge capacity, or seven years in the united States
in a managerial or executive capacity, shall not be readmitted to
the United States as an "L-1" unless the person has resided and
been physically present outside the United States, except for brief
visits for business or pleasure, for the immediate prior year.
It is not required that the U.S. petitioning company prove there
are no U.S. workers available, no university degree is required,
and there are no minimum income requirements for either the employee,
the U.S. Company, the foreign company, or the L-1 Intracompany Transferee.
Further, there is no requirement that the U.S. Company is actually
making a profit, so long as the U.S. Company has is "doing business"
as defined in the Regulations (see below).
The foreign company, however, should show strong financial, or
if the foreign company is weak financially, then it would be necessary
for the U.S. Company to have strong financial In reviewing an L-1
visa petition, the CIS considers such factors as:
- That the beneficiary manages, supervises and controls the
work of other
supervisory, professional, or managerial employees, or manages
an essential
function within the organization, or a department or subdivision
of the organization;
- That the beneficiary exercises discretion over the day-to-day
operations
of the business activity or function; or
- That the beneficiary have specialized knowledge in the company's
proprietary procedures and methodology. In addition, the US
petitioning company will be
required to submit evidence which shows that both the U.S. Company
and the
overseas Company is "doing business" as that term is defined
by the US Regulations.
The term "doing business" is defined in the Regulations at 8 CFR
214.2(l)(1)(ii)(H) as:
"The regular, systematic
and continuous provision of goods and/or services by a qualifying
organization which has employees and does not include the mere
presence of an agent or office of the qualifying organization
in the U.S. or abroad." In order to satisfy these requirements,
the U.S. Petitioning Company must show that both it and the overseas
Company are conducting business in goods or services."
For any L-1 petition, or petition extension, it is necessary to
show current financial information for both the U.S. and the overseas
companies. Depending upon the size of the Company, the documents
that are recommended to make this showing are, at bare minimum,
an Annual Report, Balance Sheet, Profit & Loss Statement certified
by the Chief Financial Officer, Bank records, Invoices, Pro-forma
Invoices, Bills of Lading, contracts, shipping documents, business
correspondence, contracts, and any other documents that show the
Company is actively engaged in the conduct of a legitimate business
both overseas, as well as in the United States.
While the regulations seem simple and straight forward, for new,
or small companies, L-1 visas can be very difficult to get approved.
We recommend you consult qualified legal counsel for assistance
with L-1 visa applications.
Key Factors for L-1 Intracompany Transferee Visas
. . . .
Qualifying Personnel
The L-1 is available to a foreign national who, within the three
years immediately prior to entering the U.S., has been employed
abroad for at least one continuous year and is now seeking temporary
admission to the U.S. to be employed by a parent, branch, affiliate,
or subsidiary of that foreign employer in a managerial or executive
capacity, or in a position requiring specialized knowledge.
Duration of Stay An L-1 petition may be approved initially for
up to three years, with the possibility of extension for up to four
more years. In the case of a "new office*" in
the United States, the L-1 will be initially limited to one year,
with the possibility of extension upon showing the U.S. company
has actually been doing business during that year.
* See definition of "New Office" below.
Definitions
1. Managerial Capacity:
Refers to an assignment within an organization in which the employee
primarily: manages the organization or a department, subdivision,
function or component, or, supervises and controls the work of other
supervisory, professional, or managerial employees, or manages an
essential function within the organization, or a department or subdivision
thereof; has the authority to hire and fire or recommend those actions
(promotion, leave authorization, etc.) 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 exercises discretion over the day-to-day operations
of the activity or function for which the employee has authority.
A first-line supervisor is not considered to be acting in a managerial
capacity merely by virtue of supervisory duties unless the employees
supervised are professional.
2. Executive Capacity:
Refers to an assignment within an organization in which the employee
primarily directions the management of the organization or major
component or function thereof; establishes the rules and policies
of the organization, components, or functions; exercises wide latitude
in discretionary decision-making; and, receives only general supervision
or direction from higher level executives, the Board of Directors,
or stockholders of the organization.
3. Specialized Knowledge:
This is knowledge, possessed by an individual, of the U.S. employer's
product, service, research, equipment, techniques, management, or
other interests and its application in international markets, or
an advanced level of knowledge or expertise of the employer's processes
and procedures.
4. Qualifying Organization:
This refers to a U.S. Or foreign firm, corporation, or other legal
entity which is, or will be, doing business as an employer in the
U.S. And in at least one other country, directly or through a parent,
branch, affiliate, or subsidiary, for the duration of the foreign
national's stay in the U.S. as an Intracompany transferee, and which
meets exactly one of the qualifying relationships specified in the
definitions of a parent, branch, affiliate, or subsidiary.
5. Parent:
A firm, corporation, or other legal entity which has subsidiaries.
6. Branch:
An operating division or office of the same organization housed
in a different location.
7. Subsidiary:
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, fifty
percent of the fifty-fifty 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.
8. Affiliate:
One of two subsidiaries, both of which are owned and controlled
by the same parent or individual, or 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. The paramount issue is that of control. If A & B
each own 26% of both the U.S. And foreign entities, it is irrelevant
who owns the remaining 48% of either organization.
9. New Office in the United States:
An organization which has been doing business in the U.S. through
a parent, branch, affiliate or a subsidiary for less than one year.
10. Doing Business:
The regular, systematic, and continuous provision of goods and/or
services by a qualifying organization and does not include the mere
presence of an agent or office of the qualifying entity of organization
in the U.S. And abroad. It is crucial to obtaining approval of an
L-1 visa petition that you read and fully understand the definitions
and qualifications described in this article, particularly as they
apply to you and your case.
The words used in the L-1 statutes and regulations are carefully
defined. Your organization and the individual worker to be transferred
must fit exactly within each relevant definition. For example, the
requirement that the employee have worked for the foreign entity
for one out of the three years immediately preceding his entry in
L-1 status means 12 consecutive calendar months; not 11 or even
11 1/2. The three years before entry means just that. If a worker
was employed by the foreign organization 3 1/2 years ago, and left
that employ 2 1/2 years ago, he or she does NOT qualify.
Similarly, the ability of a first-line supervisor to qualify if
the individual supervised professionals means, specifically, that
those supervised must hold a baccalaureate degree (4 years of college)
and be doing work which normally requires that degree in order to
enter the field. Thus, it is extremely important to consult with
your attorney to insure that each of the requirements have been
properly evaluated before taking any further steps toward obtaining
the visa.
11. Spouse and Dependent Children:
The spouse and children (under 21 and unmarried) may obtain an
L-2 visa, allowing them to enter the U.S. with the principal alien.
After arrival in the United States, L-2 Spouses can apply for an
Employment Authorization Document, and once issued are allowed to
work in the United States. Children and spouses are allowed to attend
school and/or participate in voluntary organizations.
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