L-1A & L-1B:
L-1 visa category allows employers to move personnel from foreign subsidiaries, parent companies, affiliates and branch offices to the employer's U.S. based operation to engage in temporary work. Compared to the H-1B, L-1 status has numerous advantages for employers that qualify: there is no annual cap on the number of L-1s that may be issued, there are no prevailing wage or Department of Labor record requirements, filing fees for most new L-1s are substantially lower than they are for new H-1Bs, government processing is generally quicker, payment of the L-1 employee ’s salary may be made by the U.S. organization or by the foreign entity.
In order to qualify for L-1 status, the beneficiary employee must meet certain eligibility requirements, and the U.S. and foreign entities must have a "qualifying relationship."
Employee Eligibility Requirements
To qualify as an L-1 transferee, the employee of the international organization must meet the following requirements:
The foreign worker must have been continuously employed abroad by a parent, affiliate, subsidiary or branch office of the petitioning company in the United States for at least 12 months in the three years prior to the individual's application for admission in a specialized knowledge, managerial or executive capacity;
The foreign worker will be entering the U.S. temporarily in order to continue work for the same employer or its affiliate, parent or subsidiary; and
The work for which the employee is being transferred to perform must be in the United States must be managerial/executive in nature (L-1A status) or involving specialized knowledge (L-1B status).
The U.S. entity must be a branch office, subsidiary, parent or affiliate of the company where the employee gained his or her qualifying experience abroad. The key question is whether the relationship between the two companies involves sufficient level of majority ownership or control. Here are examples of relationships that would qualify:
The U.S. entity owns 100% of the stock of the foreign entity;
The foreign entity owns 100% of the stock of the U.S. entity;
The U.S. entity owns 51% of the foreign entity;
The foreign entity owns 51% of the stock of the foreign entity;
The U.S. entity and foreign entity are each owned 51% by a third company;
The U.S. and an unrelated third company each own 50% of the foreign entity, and both owners have equal control and veto power over the foreign entity;
The U.S. company only owns 40% of the foreign entity but retains control of the company by an agreement guaranteeing it veto power, and the right to elect the majority of the board members.
The petitioning employer bears the burden of proving the existence of a qualifying relationship between the foreign and U.S. entities. A number of factors help to determine whether a qualifying relationship exists, including common name usage, regular sharing and exchange of personnel, cross directorship, sharing of technical, financial and research skills and size and general recognition of the organization as a whole. An affiliate/subsidiary relationship cannot be proven by a mere contractual agreement. Affiliates need to show that they and the U.S. company are owned by a common parent, or by the same group of individuals who own approximately the same share or proportion of each entity, or are included in an international partnership agreement used by international accounting firms.
L-1A Multinational Managers and Executives
L-1A status is for intra-company transferees working in an executive or managerial capacity.
"Executive capacity" means an assignment where the employee will:
Direct the management of the U.S. entity in the United States or a major component or function of the entity;
Establish goals and policies for the entity, or component or function of the entity;
Exercise wide latitude in discretionary decision making; and,
Receive only general supervision or direction from higher level executives, the board of directors or stockholders.
"Managerial capacity" refers to positions where the employee will:
Manage a department, subdivision, function or component of the U.S. entity;
Supervise other managerial and/or professional level employees, or manage an "essential function" of the organization in which the employee works;
Exercise authority to hire and fire, or recommend these and other personnel actions; or, if no employees are directly supervised, functions at a senior level within the company; and,
Exercise discretion over the day-to-day operation of the activity or function for which the employee has authority.
Initial L-1A approvals may be granted for up to a three-year period. For a new business that has been in existence for less than a year, the initial approval will be granted for a one-year period. Extensions may be sought in two-year increments up to a maximum of seven years.
L-1B Specialized Knowledge
L-1B status is available for multinational transferees who possess specialized knowledge of the company's products and its application to international markets, or an advanced level of knowledge of the processes and procedures of the company. Due to concerns with abuse of the L-1 program, United States Citizenship and Immigration Services (USCIS) officers have reviewed specialized knowledge cases more closely in recent years. Pursuant to USCIS policy, specialized knowledge that relates to the company's product, must be "noteworthy or uncommon," and the employer bears the burden of proving that the L-1B employee is distinguished by some unusual qualification which is not generally held by others in the industry. Where knowledge relates to the company's processes or procedures, the employer is required to show that it is "advanced" by submitting evidence setting it apart from elementary knowledge possessed by others in the industry.
In order to obtain L-1 status on behalf of a multinational transferee, in most cases the employer must file an L petition at the appropriate service center with jurisdiction over the geographic region where the employment will be based. This step may be skipped for Canadian citizens, and individuals whose sponsoring employer has blanket L-1 designation (see below). While processing times can vary from service center to service center, without premium processing, typical wait times range between 4 to 8 weeks. The employer may seek “premium processing” of the petition for an additional $1,000.00 filing fee which usually results in the petition being adjudicated within 15 days of receipt by the USCIS (assuming no Request for Evidence ("RFE") is issued). Once the visa petition has been approved, the employee may apply for an L-1 visa at a U.S. consular post abroad to enter the U.S. in L-1 status. Due to interview requirements at the consulates for visa issuance, the employee becomes subject to the mercy of the consulate’s appointment calendar. Wait time for an interview can be as short as a day, or as long as a couple months. In some cases, additional security checks are required, which may delay the process for several months.
Initial L-1B visas may be granted for up to a three-year period. L-1B holders may seek an extension in a two-year increment up to a maximum of five years. Note that if the employer seeks to switch the employee from L-1B status to managerial or executive L-1A status, the change must be made no later than six months prior to the employee's 5 year L-1B limit.
Green Card Sponsorship and the "Doctrine of Dual Intent"
Unlike most other nonimmigrant classifications, the Immigration and Nationality Act (INA) and USCIS regulations imposes few restrictions on foreign nationals who are seeking permanent residency while in L-1 status. Traditionally, to be admitted into the United States, all nonimmigrants were required to prove a residence abroad for which they had no intention of abandoning. This meant that they had to convince the consular officer and/or immigration officer that they were not intending to pursue permanent residency ("green card" status) once admitted as a nonimmigrant. Although this is still the case for most classifications, the legacy INS and later Congress began to recognize a distinction for temporary workers in H-1B, and L-1 statuses, and, to a lesser extent, workers in E-1, E-2 and O-1 statuses. This exception which is referred to as the "the Doctrine of Dual Intent" allows H-1Bs and L-1s to seek permanent residency, and actually apply for permanent residence status, without jeopardizing their H-1B or L-1 temporary status. Although USCIS policy memoranda has stated that E-1, E-2 and O-1 status holders may also seek permanent residency, the ability to file a green card (adjustment of status) application without jeopardizing one's E or O status, has yet to be established in the regulations.
Blanket L-1 Petitions
Certain large multinational companies qualify for blanket L-1 designation. Unlike regular L-1s, a company with an approved blanket L-1 may transfer employees without filing an individual petition with the USCIS, which provides substantial savings in terms of costs and time. To qualify for blanket L-1, the U.S. based company must submit a petition to the USCIS evidencing that it meets the following requirements:
The petitioner has an office in the United States that has been doing business for at least 1 year;
The petitioner has at least 3 or more domestic and foreign branches, subsidiaries or affiliates;
Each branch, subsidiary and affiliate to be included on the blanket petition is engaged in commercial trade and services (as opposed to existing as a mere shell or holding company)
The petitioner and other qualifying entities have: obtained approval of at least ten L-1 petitions in the previous 12 months; or have U.S. subsidiaries or affliates with combined annual U.S. sales of at least $25 million; or have a U.S. workforce of at least 1,000 employees.
Benefits of L-1 Blankets
As noted above, if an employer has an approved blanket L petition, its employee need not wait through the service center processing. The entire petition on form I-129S (with supporting documents) may be mailed to the employee who simply makes an appointment for the interview and presents the application packet to the consulate. Therefore, a blanket L petition significantly cuts down on the amount of time spent waiting for processing and a transfer may be completed in as little as a few days for some consular posts.
An additional benefit to having an employee enter the U.S. pursuant to a blanket L petition is the flexibility it provides should there be any changes in the employment. For transferees holding traditional L visas, an employer must file amendments to the approved visa petition whenever the transferee transfers from one company to another within the same organization, or the organization is restructured such that employee is working for a different company. For a blanket L approval, however, a new or amended petition is only required when there is a significant change in job duties or he or she is transferred to a company not listed on the blanket.
Blanket L-1Bs and "Specialized Knowledge"
As noted above, L-1B status requires that the employee have "specialized knowledge" of the employers products, processes or procedures. Applicants for blanket L-1Bs must meet a higher standard; they must be "specialized knowledge professionals." Unfortunately, the term "profession" is not clearly defined by the Immigration and Nationality Act. Some consulates and embassies have taken the position that a profession only include occupations which normally require a bachelor's degree in a specialized field, which is as standard similar to that for H-1B status. An applicant for an L-1 blanket who does not possess such a degree may therefore be found ineligible depending on where he or she applies. We have found that many of the larger consular posts, however, have taken a much more flexible and realistic approach to determining whether an applicant meets the standard for "specialized knowledge professional. Please contact our office should you have questions relating to a specific embassies or consulates' policies in this respect.
NAFTA L-1s for Canadian Citizens
Pursuant to the terms of the North American Free Trade Agreement ("NAFTA"), Canadian citizens are not required to obtain an L-1 visa. As with blanket L-1 applications, a petition also need not be filed with the USCIS service center prior to applying for admission. Thus, obtaining an L-1 for a Canadian can be accomplished in as little as a day or two in many cases.
Please note that, although Mexico is also a party to NAFTA, the preferential L-1 application procedures are not available to Mexican nationals. Mexicans may, however, apply for TN status under NAFTA.