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:

    1. 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;
    2. That the beneficiary exercises discretion over the day-to-day operations
      of the business activity or function; or
    3. 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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