L1 VISA CATEGORY
LLM USLS Spring 06
Graduate Legal Research
1. Background to L1 visas
The United States L1 visa is a non-immigrant visa which allows companies operating both in the US and abroad to transfer certain classes of employee from its foreign operations to the US operations for up to seven years. The employee must have worked for a subsidiary, parent, affiliate or branch office of US company outside of the US for at least one year out of the last three years.
Companies operating in the US, may apply to the relevant BCIS service center for an L1 visa to transfer someone to the US from their overseas operations. Employees in this category will, initially, be granted an L1 visa for up to three years.
There are two types of employee who may be sponsored for L1 visas:
The legal definition of management and executive roles for these purposes is quite strict, and a detailed description of the duties attached to the position will be required. In particular, the executive or manager should have supervisory responsibility for professional staff and/or for a key function, department or subdivision of the employer. Such personnel are issued an L1A visa, initially for a three year period extendible in 2 year increments to a maximum of 7 years.
b. Specialized Knowledge Staff
This category covers those with knowledge of the company’s products/services, research, systems, proprietary techniques, management, or procedures. Staff in this category are issued an L1B visa, initially for three years extendible to a maximum of five years.
On completing the maximum allowable period in L1 status, the employee must be employed outside the United States for a minimum of one year before a new application is made for L or H status.
Any organization which is ‘doing business’ (i.e. has more than simply an agent or representative presence) in the United States can sponsor an L1 visa, provided that the candidate qualifies in either L1A or L1B category, and that the sponsoring organization continues to carries on doing business outside the United States for the duration of the worker’s L1 status. There is no restriction on the types of business that can sponsor an L1 visa – corporations, partnerships, government-owned entities and non-profit organizations are all eligible. Nor is it a requirement that the sponsoring organization be United States-owned or incorporated. It is, however, a requirement that there is some equity or ownership link between the transferor organization and the transferee organization in the United States.
3. Qualifying Relationships:
In order to sponsor an application for an L1 visa:
· A foreign parent must own at least 50% of a US subsidiary, and have veto powers over the subsidiary’s actions;
· A US parent must own must own at least 50% of the foreign subsidiary, and have veto powers over the subsidiary’s actions;
· Affiliate US and foreign companies must each be at least 50% owned by the same ultimate parent;
· A US organization with a branch office abroad qualifies, as does a foreign organization with a US branch (though this must be more than simply an agent or representative);
· A US organization which employs e.g. sales personnel overseas can sponsor such employees for L1’s even if there is no non-US office.
4. The Blanket L1 Petition
Organizations which have been doing business in the United States for a minimum of one year and:
· Are engaged in commercial trade or services (i.e. charities, etc., do not qualify for a ‘ blanket);
· Have at least 3 offices in the US and overseas; and
· Have either:
o Sponsored at least 10 successful individual L1 petitions in the last 12 months;
o US annual sales exceeding $25,000,000; or
o A US work force of at least 1000 employees.
can include an unlimited number of qualifying foreign parents, subsidiaries, affiliates or branch offices in a ‘blanket’ petition. If approved, a blanket petition considerably speeds up subsequent L1 visa applications (from 4-6 weeks to about 10 days), which are processed at the US consulate in the employee’s own country rather than by the BCIS in the United States. The transferring employee of a foreign organization covered by the blanket petition merely has to prove his/her own eligibility as an Executive/Manager or a Specialized Knowledge Worker, rather than both this and the relationship between the US and foreign employers. However, note that a ‘specialized knowledge worker coming to the US under a blanket L1 approval must be a professional.
5. Recent Changes related to L1 B
I 129 FILING FEE $130 EXPEDIATED PROCESSING $1000 15 DAYS
I 539 FILING FEE $140
I 129+I539+I 907* PREMIUM PROCESSING $1000 * family members
Travel before the decision is adjudicated is considered as ABANDONED & DENIED
Applicant will have to seek for visa for readmission
Travel while the petition of extension of stay is pending:
· NOT considered as abandoned
· Withholding may be granted, not withstanding the trip abroad
· If the visa has expired or if the visa was a single entry visa, one has to reapply
6. INTRODUCTION OF L1
· Most useful tool for international companies
· To bring their employees to US §101(a)(15)(L) INA and 8 USC §1101(a)(15)(L)
· 1990 INA created new employment based preference category
· Managers and executives
· Priority workers
· 40000 annual immigrant visas allotted every year
7. Duration of stay:
· Period of time required by the employer
· Up to a maximum initial period of 3 years
· Total stay period for L1A may reach 7 years and 5 years for L1 B including first entry and second entry
8 Changing from L1B to L1 A
· Must have been performing as a L1 A position or similar for the last 6 months
· Must have documented with INS through Amended L1 Petition 8CFR §214(1)(7)(i)(c)
9. Application Process of L1 Visa
· Employer applies to the Immigration service with a petition to transfer a foreign national for a temporary period
· Petition is sent to the US consulate upon approval
· Visa is issues
· If the alien is already in the US, his/her status must be changed to L1
10. SPECIAL CONDITIONS
a. Priority workers L1A
· L1 managers and executives
· Advantageous route to permanent residence
· Are exempted for the usual labor certification requirement
· The time and procedures for the permanent residence for L1A is abbreviated
· Do not need to show that they have maintained a foreign residence during their US stay
· They only need to abide by the visa expiry and can return back on L1 even if they express their intention to seek permanent residence
· A full term resident on L1 is barred from entering US on H or L unless they have resided outside of the US for a full year
· Any time spent outside of US during the Approval period of an H or L petition may count towards the limit of stay UNLESS the period outside US was interruptive of the US employment.
· Vacation and short term assignments are not considered interruptive.
· Medical leave and long term work assignments can be considered as interruptive OR would not count toward the limit of stay.
· Interruptive=FULL ONE YEAR
· Short trips to US do not count towards fulfilling the one year requirement or bar one to return to L1 status.
· Every day spent within the US extends the length of one year requirement.
c. One year requirement and evidence:
· Employer to submit evidence with the petition
· Alien’s employment during the past year
· Alien’s place of residence during the past year
· Date and purpose of each trip to the US by the alien in the past year
· For second term of stay the employer must demonstrate in a letter about the employee’s compliance with the one year requirement and other evidences (Required by the Vermont Service Center)
· INS combines the stay on H and L to determine the limit of stay and may require an one year abroad residence
d. Limits on stay as of Oct 1, 1991
L1 B Specialized Knowledge 5 years
L1 A Managers and Executives 7 years
H1B Workers in specialty occupations 6 years
H1A Nurses 5 years (Exception of 6 years available)
11. Dependents L2 Visa
· Spouse and children if L1
· L2 cannot engage in employment unless independently qualified e.g. as H1
· Can undertake courses of study while remaining in L2 status.
12. BASIC REQUIREMNT FOR OBTAI NING L1 STATUS
1. Employee must have worked in the overseas company for at least one year in the last 3 years
§ Can be transferred only to a related Us company
§ INS to check for the one year requirement abroad
§ US stays during that period cannot be counted to fulfill the requirement of one year
§ Each day in US during that preceding time adds one day tot eh total time that the alien has to spend abroad
a. Part Time Employment Abroad
§ Part time work does not count towards the one year requirement unless the alien had several part time employment and the companies were foreign affiliates of a US company
§ Or the total employment time equals full time hours
b. Unrelated Foreign Employer
§ INS does not require that the petitioner company is/was related to the previous employer of the employee
§ But, alien must have worked for a qualifying organization one year during the last 3 years, preceding the admission application to US
§ Working with any unrelated entity in the past will not bar the alien from getting a L1 unless the alien has fulfilled the one year requirement with a related entity in the last 3 years
c. The one year period must be continuous and not broken or added with any other work, thus INS does not permit aggregation
d. Alien in H1 B status during the time of the application:
· INS will take the three years before the admission of the alien in US to determine L1 eligibility
e. Definition of Employee for L1 purposes:
· The foreign company must have employed the beneficiary/employee directly
· Individual contractor hiring the alien does not satisfy or comply
· Degree of control, rather that the payment of salary is used to determine the one year stay
2. The company for which the alien worked must be related to the US company in a specified manner
· The company abroad must be “the same employer or a subsidiary or affiliate” of the US company
· One that is doing business in the US and another country during the whole period of the transfer
· Must continue to do business abroad during the time of alien’s stay in the US in L1 status
· Doing Business: means regular, systematic and continuous provision of goods and/or services
· Foreign and US employers MUST be related in a specific manner
· Even if the foreign employer does not exist, the alien may be in the L1 status unless the employing company is continuing the employment.
· must be in Executive and Managerial Level
· Must be employed in a managerial or executive level
· Or must be in a position requiring special knowledge
· Employee must be coming to US to fulfill the managerial, executive or specialized knowledge categories
· Employee must be qualified by virtue of his/her education and experiences
· Proof of qualification for the job must be presented
· Must depart US upon completion of authorized stay and extended period
· Letter affirming depart from the company is required
· Must depart US on the date listed in the I 94 or approved extended period
· If the alien’s job is terminated prior to the period specified earlier, he/she will be deemed to be residing unlawfully, even if the I 94 period has not expired
· An L1 petition cannot be denied simply because the petitioner openly expresses an intent to seek permanent residence in the US
13. IMPORTANT FACTORS IN L1 CASE
· One year employment in the last three years with a foreign affiliate entity?
· Total number of day’s employee has spent in the US in the past years?
· Has the employer worked abroad for the number of days he has been in the US?
· Was the one year employment full time?
· Is there an actual employment relationship?
· Employment based on degree of control rather that payment of salary?
· Is there clarity between the owner of the business and the employee?
· Is the previous employer a qualifying employer?
· Is there a documentation of the one year employment?
· Is the foreign company related to the US Company in a correct way?
14. Qualified Organization fro L1 transfer of employees also known as the theory of EFFECTIVE CONTROL
· Are the foreign company and the US company branch of a same entity?
· Does any one of these hold 50% shares in another? (50% is actually not required but it clarifies the legal relationship.
· Are both the foreign and us company’s majority shares held by a third company?
· Are they joint ventures?
· Even if the answers to the above four are NO, the applicant my still be qualified.
A. Other points to be noticed:
· Same shareholders in both companies, demonstrating controlling interest
· Large organizations and their annual reports
· Small organizations and their articles, by laws, charters and board minutes
· Partnerships and their agreement
· Sole proprietorships and the statement of the owner , license to do business, revenue registration and tax returns
· US agent having a contractual relationship with a foreign company
· International accounting firms
· Newly formed business relationship can be demonstrated only through transfer of stocks
B. Transfer of the employee:
· Executive, managerial or specialized knowledge capacity ONLY
· Which of the three will the alien be fulfilling in the US?
· Is the alien currently in the similar position?
15. L1 B or Specialized Knowledge
· A complex question to INS
· 1998 policy explained this issue and 1990 act endorsed it.
· An alien is considered to be serving in a capacity involving specialized knowledge with respect to the company if the alien;
o Has special knowledge of the company product and it application in the international market
o Has an advanced level of knowledge of process and procedures of the company
o Elaborated case to case basis by the INS
· Useful for executive and managers to open a new US office of the foreign employer
· In a new office case, the transferee may qualify for L1 even if he/she may not be the manager or the executive level because of the new nature of the entity where such personnel may be require dot generate product and work with procedures, and business operations.
16. L1 A or the Executive
o Who direct the management of the company or the organization or a major component of the organization
o Establishes organization goals and policies
o Exercising a wide latitude of discretionary decision making
o Receiving only general supervision from other higher level executives, board members and shareholders
o Supervises work of other persons
a. Some of the factors which Administrative Appeals Office AAO of INS considers;
o whose primary duty is to direct the organization;
o who controls the work of others;
o having the authority to hire and fire;
o who exercises discretionary authority in the day-to-day operations
o who functions the company
o who oversees other personnel
AAO Standards FOR MANAGEIAL AND EXECUTIVE CAPACITY
o Whether the beneficiary has been and will be primarily performing the tasks necessary to produce the product or provide the service of the organization
§ Whether the US entity is employing or intends to employ other workers or subcontract workers who will actually engage in the tasks necessary to produce the product or provide the service of the organization
Ø AAO may consider payroll in determining such workers availability with the company
Ø AAO will also consider independent contractors and subcontractors if any
§ Whether the position’s core duties are more related to the operational activities of the business or to the management of such activities
Ø A manager who conducts a market research is unlikely to qualify.
o Whether the beneficiary has occupied and will occupy a senior position within a complex organizational hierarchy
§ AAO will review the complexity of the organizational hierarchy and the aliens position
§ Small organizations are also found to have this complex nature
o Whether the beneficiary has managed or will manage an important function
§ Determined by the economic value of the function
o Whether the employer has the financial ability to remunerate an executive or managers and the other workers who will perform the tasks necessary to produce the product or provide the services of the company
§ If the employer can afford to employ
· E.g. salary as low as $50000 is deemed sufficient for a small US entity
· Employer should submit financial report and business plans
o Whether the evidence presented by the employer is sufficient to establish beneficiary’s eligibility for L1 status a san executive manager. Evidences to be produced:
· Detailed description of duties performed abroad and in the US
· Financial data showing employers ability such as audited financial statements, corporate income tax returns, annual reports, bank account records etc
· Organizational structure of both abroad and US entity along with the description of duties
· Managerial function of the transferee, division, function including the economic value of the function
· Availability of other workers who will engage in the operational activities including payrolls, w2 forms, list of contractors and sub contractors etc
o Whether the petitioner is a new entity
· Must be shown that the new office can sustain for one year
· The proposed nature of the office, scope o the entity, organizational structure and financial goals
· Size of US investment and financial ability of the foreign entity to remunerate the beneficiary
· The organizational structure of the foreign entity
17. MISCELLANEOUS POINTS TO REMEMBER ABOUT L1 CATEGORY
1. Transferees may come to the US on part time basis
2. source of transferee’s remuneration is not important
3. non profit companies can qualify for intra-company transfers
18. PROCEDURES FOR OBTAINING ADMISSION IN L1 CATEGORY
1. prepare the preliminary papers
· INS Form I-129, I-129S and the I-129L supplement
· G 28
· The company’s letter supporting petition
· Documents supporting the petition
2. submit the papers
· papers and filing fee
· Submit to the INS service center with jurisdiction over the place of intended employment.
3. have the employee obtain the L1 visa
· employer can give the approval notice to the employee to take it to the US consulate abroad to obtain a visa
- Immigration Law, Nut shell, West
- Immigration law Handbook