L-1 Intracompany Transfer Visas
The L-1 visa is a non-immigrant visa provided for in the Immigration & Nationality Act which is available to aliens who seek to enter the U.S. temporarily to continue work for the same employer or its affiliate or subsidiary.
Eligibility Requirements for an L-1 Visa:
- One-year requirement: An alien seeking entry on an L-1 visa must be employed continuously abroad for 1 of the past 3 years by the parent, branch, affiliate, or subsidiary of the U.S. company preceding his application for admission on an L-1 visa
- Employment for the L-1 visa must be from a firm, corporation or other legal entity or its branch, affiliate or subsidiary, including profit, nonprofit, religious, and charitable organizations
- An L-1 visa holder must either work in a capacity that is managerial or executive (L-1A), or must hold a position that involves specialized knowledge (L-1B)
- Full-time employment is NOT required while in the U.S. on an L-1 visa
- The doctrine of Dual Intent applies to L-1 visa holders
- The one-year requirement for the L-1 visa cannot be met by working part of the year for affiliate or branch in U.S.
- Time spent in U.S. will not interrupt the one-year requirement for an L-1 visa.
- Also, time spent in U.S. in another status in excess of 3 years does not interrupt the one-year year requirement for the L-1 visa if the companies have a qualifying (e.g., parent-subsidiary) relationship.
- Working in American Samoa or another outlying possession is sufficient to meet the one-year abroad requirement for an L-1 visa,
- A combination of part-time employment can be used to meet the one-year requirement for the L-1 visa if part-time work is for affiliated companies.
- Blanket L-1 visa employees are also required to show that they worked for the company abroad for one year.
Doctrine of Dual Intent
- The “Doctrine of Dual Intent” means that, even though a nonimmigrant must demonstrate genuinely that his/her intent is to remain in the U.S. temporarily, s/he may have both a short-term intent to leave and a long-term intent to remain permanently.
- In the General Counsel’s view, the “mere desire … to obtain permanent residence in the future does not, by itself, automatically disqualify an alien from admission as a nonimmigrant.”
- This doctrine is recognized by USCIS for L visa categories. The Dept. of State has determined that if the L-1 obtained a change of status, the fact that s/he “is the beneficiary of an application for a preference status filed under section 204 or has otherwise sought permanent residence in the United States shall not constitute evidence of an intention to abandon foreign residence for purpose of obtaining a visa as a nonimmigrant described in subparagraph (L) of section 101(a)(15).”
- A person in L status can file for an extension even after she files for an application for Adjustment of Status. 8 C.F.R. 214.2(h)(16)(i), (1)(16)(ii)
- There is no prevailing wage requirement for the L-1 visa.
- Beneficiary employed in U.S. directly by a foreign company, who is not controlled in any way by the foreign company’s office in the U.S. will not qualify for L-1 status.
- There are only limited circumstances in which an employee who is in L-1B (specialized knowledge) status may be out-sourced to another company. USCIS requires the L-1B employer to retain ultimate authority over the worker.
- An L-1 is ineligible for classification as a specialized knowledge worker (L-1B) if s/he will be “Stationed primarily” at the worksite of an employer other than the petitioner or an affiliate, subsidiary, or parent and the beneficiary will be “principally” under the “control and supervision” of the unaffiliated employer or the placement in the nonaffiliated worksite is “essentially an arrangement to provide labor for hire for the unaffiliated employer.”
- Joint ventures in which there is less than majority ownership, but control, may be sufficient to qualify the relationship as subsidiary/affiliate for L-visa purposes.
- Contractual relationships are generally not sufficient to establish the relationship necessary under an L-visa.
- For ownership by a common group, each individual in the group must own approximately the same share or proportion of each entity to qualify as an organization for purposes of an L-visa.
- Church organizations may qualify as parent/subsidiary or affiliates for an L-visa under certain circumstances.
- Factors to determine if relationship exists to be a qualifying organization for purposes of an L-visa:
1. Common name
2. Regular sharing and exchange of personnel
3. Cross directorship
4. Sharing of technical, financial and research skills
5. Size and general recognition of organization
Managerial, Executive, or Specialized Skill:
- Under the regulations of an L-1 visa, the alien does not have to be transferred to the US in the same capacity in which he or she was employed abroad, but the L-1 alien must work as a manager, executive, or worked with specialized skill in the U.S.
- Managerial capacity is defined by INA ¤101(a)(44)(A) as an assignment with an organization in which the employee primarily:
1. Manages the organization, department, subdivision, function or component;
2. Supervises and controls the work of other supervisory, professional, or managerial employees, or manages an essential function within the organization or department or subdivision of the organization;
3. Has authority to hire and fire or recommend personnel actions (if other employees directly supervised), or if no direct supervision, functions at a senior level within hierarchy or as to function managed and
4. Exercises discretion over day-to-day operations of the activity or function
- The statute does not limit managers or executives to persons who supervise a large number of persons or large enterprise for L-1 visa purposes.
- Supervision for L-1 visa purposes includes supervising independent contractors as well as employees.
- Executive capacity is defined for L-1 visa purposes by INA ¤101(a)(44)(B) as an assignment in an organization in which the employee primarily:
1. Directs the management of the organization or a major component or function;
2. Establishes goals and policies;
3. Exercises wide latitude in discretionary decision making and
4. Receives only general supervision or direction from higher-level executives, board of directors or stockholders. In determining whether an individual is acting in amanagerial or executive capacity, AG shall take into account the reasonable needs of the organization, component or function in light of the overall purpose and stage of development of the organization, component or function. The number of employees supervised is not determinative. 9 FAM 41.54 N.8.2.
- For purposes of the L-1 visa, specialized knowledge is defined to include a person who has specialized knowledge of the company product, service, research, equipment, techniques, management or other interests and its application in international markets or has an advanced level of knowledge of processes and procedures of the company
- Where the knowledge is of a company product, the knowledge for L-1 visa purposes must be “noteworthy or uncommon.” and would be difficult to impart to another without significant economic inconvenience to the U.S. or foreign firm
Under 9 FAM 41.54 N.8.2-2, characteristics of specialized knowledge for L-1 visa purposes include:
- Possession of knowledge that is valuable to the employer’s competitiveness in the market place
- Uniquely qualified to contribute to the U.S. employer’s knowledge of foreign operating conditions
- That which has been utilized as a key employee abroad and has been given significant assignments which have enhanced the employer’s productivity, competitiveness, image or financial position
- Knowledge that can be gained only through extensive prior experience with that employer
Nature/Size of Company
- Parent and subsidiary companies do not have to be in the same business for an alien to qualify for an L-1 visa.
- There is no size limitation on the company, but depending upon the size of the company, different types of evidence may be required to acquire an L-1 visa.
- An L-1 visa holder can be transferred from one U.S. affiliate to another, but the L-1 employer must file a new I-129.
- To start the L-1 visa process, an I-129 must be filed by the employer/petitioner at the USCIS service center where the beneficiary will perform his/her services
- There is a $500 special fraud fee for a new L-1 visa petition, which will be collected only one time. There will be no other fraud fee charges for subsequent petitions involving the same beneficiary and employer
- The L-visa petition is approved for 3 years, unless it is a new office, where the USCIS can only approve the L-1 visa petition for one year and thereafter petitioner must show compliance with managerial/executive standards
- Must file amendments to a L-1 visa petition with USCIS when there are changes in the approved L-1 relationships, additional L-1 qualifying organizations and any information which would affect the beneficiary’s employment
- Appeal of a denial of an L-1 petition by the regional service center is filed with the Administrative Appeals Office (AAO) and a review of the AAO’s decision may be filed in federal court but will generally be based on the agency’s record
Petitioner Procedure for Filing Blanket Applications:
- L-1 petitioner must fill out Form 1-129S, attach I-171C demonstrating the petitioner meets the conditions for a “blanket approval,” and must submit the form to the consular officer to obtain visa (unless visa exempt). L-1 visa blanket petitioners are no longer required to file individual petitions for blanket L-1s. However, the L-1 visa petitioner must continue to establish beneficiary’s managerial, executive, or specialized knowledge professional qualifications in each case
- Blanket L-1 visa procedures may not be used for specialized knowledge positions that are not “professional” in nature
- A new Certificate of Eligibility (I-129S) is required where beneficiary is reassigned to an organization listed in the approved petition and will be performing different job duties. A newL-1 visa Certificate is not needed for transfers to any organization listed on a blanket petition if the job duties are virtually the same
- L-1 visa petitioner has had an office and has been doing business in U.S. for one year
- L-1 petitioner has 3 or more domestic and foreign branches, subsidiaries or affiliates. L-1 petitioner and L-1 entities are engaged in commercial trade or services.
- L-1 petitioner has combined U.S. annual sales of $25 million, a U.S. workforce of 1,000 or has received approval of at least 10 L-1 visa petitions in the last 12 months.
- Nonprofit organizations cannot file blanket L-1 visa petitions
- An L-1 employee must work abroad for parent, affiliate or subsidiary for 12 months
- The Anti-Job Shop Provision of INA ¤214(c)(2)(F) applies.
Spouses and Children
- Spouses and children of L-1 visa holders are eligible for L-2 visas
- L-2 visa holders may also remain in the U.S. and change status even if the L-1 visa holder departs, so long as the 5/7-year limit has not yet been reached
- L-2 spouses are now eligible for employment authorization
Employment authorization should be filed on form I-765 at the Service Center with jurisdiction over the spouse’s place of residence and must provide:
- Proof of principal’s current status including the petition approval notice if available
- Principal and spouse’s I-94s to verify marital relationship
- Employment authorization for L-2 visa holders will be granted for the period of admission and/or status, but not to exceed 2 years.