L1 Visas

The L-1 visa category is an extremely advantageous and useful way for an overseas based company to transfer key employees to a subsidiary, branch office, parent or otherwise affiliated business entity in the United States;

L-I Intra-company transferee visa-KEY POINTS

• available for the transfer of manager and Executives and specialist knowledge employees 

• The transferred employee must have been employed in a managerial, executive or specialist knowledge capacity for a continuous period least one year out of the past three for the overseas business entity

• The transferee must be coming to the US to work in that same capacity for a related company or business entity on the US

• during the entire period of the transfer the overseas entity must continue to do business-i.e. it can not simply cease operations subsequent to effecting the transfer

• There is NO requirement that the business activities conducted by the overseas and US entity be similar of even related-for example an overseas IT company could transfer a employee to a recently acquired hotel in the US

KEY BENEFITS OF THE L-1 VISA-

• FAST TRACK TO GREEN CARD-An intra company transferred manager or executive is considered to be a Priority worker under the 1st employment based preference for permanent residency-Green cards. In short, once approved for an L1 visa as a manager or an executive and provided the US business has been in business for over a year, obtaining a green card without obtaining 'labor certification'. This means that it does not have to be established that there re no suitably qualified American workers available for the position. A lengthy and unpredictable process is thus avoided.

• THE DOCTRINE OF DUAL INTENT APPLIES- the usual rule that a nonimmigrant visa holder cannot simultaneously have a concurrent immigrant intent does not apply in this case. An intracompany transferee may simultaneously apply for a green card without violating status.

• WORK AUTHORIZATION FOR THE L1 ACCOMPANYING SPOUSE-recent law changes now permit the spouse who is accompanying an L1 principal to obtain work authorization during their stay in the United States. 

Additional Questions:

What is a manager?

(A) Managerial capacity means responsibilities within an organization in which the employee predominantly:

1. Manages the organization, or a department, subdivision, function, or component of the organization;
2. 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;
3. Has the authority to employ and dismiss or recommend those as well as other personnel actions (such as promotion and time off authorization) if another employee or other employees are directly supervised; if no other employee is directly supervised, functions at a higher-ranking level within the organizational hierarchy or with respect to the function managed; and
4. 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 the supervisor's supervisory duties unless the employees supervised are professional.

What is an executive?

(B) Executive capacity means a position within an organization in which the employee primarily:

1. Directs the management of the organization or a major component or function of the organization;
2. Establishes the goals and policies of the organization, component, or function;
3. Exercises wide latitude in discretionary decision-making; and
4. Receives only general supervision or direction from higher level executives, the board of directors, or stockholders of the organization.

What is specialized knowledge?

(C) Specialized knowledge means special knowledge possessed by an individual of the petitioning organization's product, service, research, equipment, techniques, management, or other interests and its application in international markets, or an advanced level of knowledge or expertise in the organization's processes and procedures.

Duration of Stay:
The total period of stay permitted for a manager or executive the total period of stay permitted is seven (7) years. For specialized knowledge employees it is only five (5) years  These maximums do not apply in the event that an L1 employee only makes seasonal or intermittent visit to the United States. There is no requirement that the L1 visa holder work full time in the United States.

New start up situations

The Immigration laws and regulations recognize that often an overseas company may wish to send key employees to the United States to oversee the start up of a newly formed subsidiary or branch office. In this case a start-up L1 visa is granted for a one year period even though business activity ma not have started and no employees have been hired. 

At the end of the one year period the visa may be extended upon presenting evidence that there is significant business activity which can justify the continued presence of the L1 employee.

In order to obtain the start up visa, it must normally showed that at least a business lease has been signed and the US based corporate entity has been formed. A comprehensive business plan is often a good idea.