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L-1 nonimmigrant status is an employer-specific, employment-authorized nonimmigrant status available to a foreign national employed abroad who seeks admission into the United States to work for a qualifying affiliate U.S. employer in either managerial/executive capacity (L-1A) or specialized knowledge capacity (L-1B). The L-1 foreign national is called an “intracompany transferee.”
Obtaining L-1 nonimmigrant status requires the U.S. employer to file an I-129 Petition for Nonimmigrant Worker with the U.S. Citizenship and Immigration Services (USCIS). USCIS adjudicates this petition, normally in two to three months, although the timeframe may be longer due to persistent backlogs. An L-1 petition may be adjudicated by premium processing for an additional fee of $1000, which offers a 15 calendar-day turnaround. Upon approval, the prospective employee may apply for an L-1 visa at his or her respective U.S. consulate.
If the foreign national is already in the United States in a different status, he or she may file an application for a change of status at the same time the employer files the L-1 petition. Please note, however, that a change of status does not provide for the L-1 visa, which is necessary for re-entry to the United States. In many cases, an intracompany transferee is required to travel for business or personal reasons. If the foreign national obtains a change of status, and subsequently travels abroad, he or she will be required to apply for a visa at the U.S. consulate overseas. Moreover, the L-1 category requires that the foreign national have been employed abroad for the same or related employer for one full year within the three-year period immediately prior to the transfer, which often means that the prospective transferee is currently employed overseas at the time of filing for the L-1. For these reasons, it is often preferable for the foreign national to apply for the L-1 visa at the U.S. consulate overseas, rather than a change of status, once the L-1 petition is approved, and prior to beginning employment with the U.S. entity. Please note that the State Department requires an in-person interview to obtain an L-1 visa, and an appointment must be made with the appropriate U.S. consulate to make the visa application.
L-1 status is generally approved for an initial period of three years. However, if the U.S. employer is a start-up company, L-1 status is originally granted for only one year. The L-1A (manager/executive) can be extended up to a statutory limit of seven years; the L-1B (specialized knowledge) is limited to a total of five years. The employer is not obligated to retain the employee for the entire five- or seven-year period. Unless the parties contract otherwise, the employment relationship is “at will” and either party is free to terminate the relationship at any time. However, if the employee/employer relationship endures for the entire five-year or seven-year period, the foreign national must spend one year physically outside of the United States before regaining eligibility to apply for a new period of L-1 status.
Dependent family members (spouse and minor children) of an L-1 nonimmigrant are eligible to apply for L-2 derivative status. Spouses in L-2 status may apply for employment authorization after obtaining the L-2 status. Applications are processed in approximately 90 days. Children and spouses in L-2 status may also attend U.S. schools without changing to student status although a student in the derivative L status will not be granted practical training opportunities.
Proof of Employment Abroad With a Qualifying Company
To qualify for the L-1 status, the prospective employee must have been employed abroad with an affiliate, parent, branch, or subsidiary of the petitioning U.S. company for a continuous period of one year within the three years prior to filing the petition or entry into the United States. This period of employment abroad must have been in either managerial/executive or specialized knowledge capacity. Supporting documentation required from the petitioning employer abroad will include:
1. Proof that the company abroad and the U.S. company are appropriately related. The key to the qualifying relationship is “effective control.” Therefore, either the U.S. or the foreign entity must exercise control over the other. A 50/50 joint venture ownership will qualify.
2. Documentation that the foreign national was employed at least one full year of the previous three years with the related enterprise overseas. Please note that if the foreign national was employed overseas and made business trips to the United States, time spent in the United States must be deducted from the total amount of time employed abroad. The foreign national must establish a full year of employment outside of the United States.
3. Detailed written description of the company’s business, including: history, location of facilities, types of operations, number of employees, approximate volume of revenues, copies of marketing material, and any published reports or brochures.
4. Number of employees (with titles) that will continue to work for the company abroad during applicant’s stay in the United States.
5. Current invoices as well as any contracts or written obligations (such as leases or long-term contracts with customers) tending to show the long-term viability of the company abroad.
6. Corporate documents for the corporation (financial statements, annual report, SEC report).
Doing Business in the United States
Documentation must be submitted to show that the petitioning company is doing sufficient business in the United States to support the employment of the L-1 foreign national. This is especially important when the petitioning employer is a start-up company, newly established in the United States. Particular attention should be paid to documenting the ability of a new office L-1 employer to do business in the United States. Supporting documentation required from the petitioning employer in the United States consists of:
1. Detailed written description of the company’s business in the United States, including: history, location of facilities, types of operations, number of employees, approximate volume of revenues, copies of marketing material, and any published reports or brochures.
2. Corporate documents for the corporation (financial statements, annual report, SEC report).
3. Evidence of assets:
– Corporate bank account statements;
– Invoices for purchases of equipment;
– List of any customers—copies of contracts;
– Invoices for purchases of machinery.
4. Copy of lease, title, or purchase option of space(s).
5. Incorporation documents and official registration, or federal tax identification number.
6. Name and title of officer who will sign forms.
7. Proof of citizenship and offer letters for employees, including résumés, applications, and contracts.
8. Company letterhead.
9. If the employer is a start-up company, then include a detailed business plan (including a description of the company’s business, the number of projected employees in the short- and long-term, current revenues and projected short- and long-term revenues) and evidence that there is sufficient physical premises to house the new office have been secured.
Managerial or Specialized Knowledge Capacity
1. L-1A: If the petition is for L-1A status, the prospective employment in the United States must be of managerial or executive capacity. One important advantage to this classification is that an L-1A executive or manager will often be eligible for “Priority Worker” classification for permanent residence. This allows the multinational manager or executive to apply for permanent residency without undergoing the extensive process of labor certification.
a. The Code of Federal Regulations defines “managerial capacity” as an assignment within an organization in which the employee primarily: (1) manages the organization, or a department, subdivision, function, or component thereof; (2) supervises and controls the work of other employees, or manages an essential function within the organization, has authority to hire and functions at a senior level within the organization; (3) exercises discretion over day-to-day operations of the activity or function for which the employee has authority. 8 CFR §214.2(l)(1)(ii)(B).
b. The Code defines “executive capacity” to mean an assignment within an organization in which the employee primarily directs the management of the organization or a major component or function thereof; establishes goals and policies; exercises wide latitude in discretionary decision-making and receives only general supervision from higher level personnel. 8 CFR §214.2(l)(1)(ii)(C).
2. L-1B: If the petition is one for L-1B status, the prospective employment in the United States must involve the use of specialized knowledge.
a. The Code defines “specialized knowledge” as a 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. 8 CFR §214.2(l)(1)(ii)(D).
3. L-1A and L-1B foreign nationals may submit the following information in support of their petition, if appropriate:
a. Degree or diploma with English translation and/or university transcripts with English translation if they demonstrate that the foreign national’s education qualifies him or her to perform the intended services in the United States. Please note, however, unlike in an H-1B petition, there is no general requirement that the foreign national have a baccalaureate degree or any specific level of education.
b. Detailed copy of résumé or curriculum vitae showing that the foreign national has at least one-year continuous experience of full-time employment abroad with the petitioner within the three years preceding the filing of the petition. The résumé should include the month and year of each position, job title, and description of duties.
c. Detailed description of the foreign national’s work with the related company abroad, showing that the foreign national was employed in an executive/managerial or specialized knowledge capacity. A letter from the prior employer should include a detailed description of the services performed as evidence that the foreign national’s work experience qualifies him or her to perform the intended services in the United States.
d. Detailed description of foreign national’s proposed U.S. position, showing that the foreign national will be employed in an executive/managerial or specialized knowledge capacity.
e. Anticipated salary/compensation with the company abroad and the new U.S. company. Please note that while it is not necessary to establish “prevailing wage” in the L-1 petition, the L-1 foreign national must be an “employee” of the company—not simply the company’s owner—and the salary should be appropriate to the position.
f. If the position is of managerial/executive capacity, organizational charts from the company demonstrating the hierarchy of personnel in the prospective employee’s department or division can be helpful.
g. Copies of passport pages showing identity, validity or expiration date, any U.S. visas, and any admission stamps.
Attorneys at I.S. law Firm have helped many foreign nationals obtain L-1 visas, L-1 extensions, or change of status to and from L-1 status. To learn more about our services and for consultation, please contact us at +1-703-527-1779 or via e-mail: [email protected].