L1 Visa Guide for Intracompany Transferees - Frear Law

GUIDE TO THE
L1 VISA

Ben Frear, ESQ
Ben Frear, ESQ

Business Immigration Lawyer & Founder of Frear Law PLLC

L1 Visa Guide: Table of Contents

L1 Visa Summary

The L1 Visa allows the transfer of qualifying employees from a foreign company to a related US company. The L1A Visa is reserved for upper level managers and executives. The L1B Visa is for employees with specialized knowledge.

Key Terms, Concepts and Legalese

L1A Visa: The type of L1 Visa that is issued to Managers and Executives

L1B Visa: The type of L1 Visa that is given to employees with specialized knowledge

New Office L1 Visa: Issued to US companies that have been open for less than one year

US Company: The US company where the foreign national employee will work after obtaining L1 status

Foreign Company: The related company abroad where the employee previously worked

Petition: A fancy word for an “application”

Petitioner: The US or Foreign Company that is petitioning/applying for the employee to work in the US

Beneficiary: The foreign national employee who will work in the US

I-129: The form that is used to request the L1 Visa 

USCIS: The US government agency that decides the L1 Visa petition

Advantages of the L1 Visa

The L1 Visa is a very popular option for multinational companies. Here are some of the primary benefits:

  • The L1 Visa for Managers and Executives(L1A Visa) can provides a smooth path to an EB1C green card.
  • The L1 Visa is valid for up to seven(7) years for Managers and Executives(L1A Visa) and up to  five(5) years for specialized knowledge employees(L1B). These visas can be extended up to seven years for L1A Visa holders and five years for L1B Visa holders. 
  • It is Start-up Friendly: New US Companies(that are related to a foreign company) can transfer founders, executives and managers to the US to expand their business.
  • The L1 Visa is a dual intent visa. This means that you can simultaneously have the intent to work on the L1 Visa(Non Immigrant Visa) while intending to obtain a US green card.
  • Benefits for L1 Visa Spouse: The spouse of the primary L1 Visa holder will obtain the L2 Visa. The spouse will be able to apply for the L2 Visa EAD.

Basic Requirements

In order to qualify for an L1 Visa, the US company is required to show:

  • A qualifying corporate relationship between the entity abroad and the entity in the US;
  • The employee will work as a manager, executive or specialized knowledge employee in the US;
  • The employee has worked abroad as a qualifying manager, executive or specialized knowledge employee for at least one year during the past three years

Employer Requirements

The Qualifying Corporate Relationship

In order to qualify for an L1 Visa, there must be a qualifying corporate relationship between the foreign company where the employee worked and the US company where the employee is seeking to work.

In order to qualify for the L1 Visa, both the foreign company and the US company must be “qualifying organizations.” 

There are four types of qualifying corporate relationships for the purpose of the L1 Visa. The relationships are: 

  1. Same Company
  2. Parent/ Subsidiary
  3. Affiliate Relationship
  4. Branch Office

The Parent/Subsidiary Relationship

A parent/ subsidiary relationship exists when one of the companies exercises
control over the other as evidenced by stock certificates, operating agreements etc.

The Affiliate Relationship

An affiliate relationship exists when both organizations are controlled by a common owner. The common owner could be a parent company, an individual or a group of individuals. 

Branch Office 

The third type of qualifying corporate relationship is a branch office which is defined by the regulations as “an operating division or office of the same organization housed in a different
Location.”

Employee Requirements

In order to qualify for the L1 Visa, the employee must have worked for the foreign company as a manager, executive or specialized knowledge employee for “one continuous year of full-time employment abroad.”

So…periods of part time employment cannot be strung together. 

Also, since the employment must be continuous, the employee can not qualify based on multiple periods of time that add up to one full year. 

While this is the general rule, there is one notable exception. If the employee worked for a related company in the US in lawful status, this period of employment will not interrupt the continuous one year of employment abroad. However, understandably, this time spent in the US will not count toward the one year of foreign employment requirement.

L1A Visa Classification for Managers and Executives

In addition to working for a qualifying company abroad for the appropriate period of time, the
employee must have worked either in a managerial, executive, or specialized knowledge capacity for that entire period. Also, the employee must be coming to the US to work in a managerial, executive or specialized knowledge role.

Requirements for Managers(L1A Visa)

“Managerial Capacity” is defined as “an assignment within an organization in which the employee primarily: 

(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 hire and fire or recommend those as well as other personnel actions
or functions at a senior level within the organizational hierarchy
(4) Exercises discretion over the daily operations of the activity or function for which the employee has authority

A Note about L1 Visa Functional Managers

In addition to allowing traditional managers that supervise other professional or managerial
employees, functional managers can also qualify under the L1A category. A functional does not directly supervise other employees. Rather, they operate at a senior level within the company without directly supervising and controlling the work of immediate subordinates. 

Requirements for Executives(L1A Visa)

An employee works as an executive if they primarily:
(1) Direct the management of the organization or a major component or function of the organization;
(2) Establish the goals and policies of the organization, component, or function;
(3) Exercise wide latitude in decision-making; and
(4) Receive only general supervision or direction from higher level executives, the board of directors, or stockholders

Requirements for Employees with Specialized Knowledge (L1B Visa)

The L1B is for employees with specialized knowledge.

Specialized knowledge is defined by the regulations as “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.”

Sadly, this definition does not provide clear guidance for employers. However, as a rule of thumb, employers should understand that the more critical the knowledge is to the company’s competitive advantage in the marketplace, the greater the odds of a successful petition. For example, if the employee developed novel proprietary software that gives the company an edge, then an L1B could be a valid option.

New Office L1 Visa Requirements

One nice aspect of the L1 Visa is that it is startup friendly. However, those who are considering the L1 Visa route should understand that USCIS has special rules for companies that want to send an executive or manager to the United States to establish a “new office” or work for a “new office.”

A “new office” tag will be applied to any organization that has been doing business in the United States for less than one year.  For new office L1 Visa petitions, the employer must meet the standard requirements. They also must justify the sufficiency of the physical premises and demonstrate the ability of the new office to support the position of manager or executive within the first year of operation. 

Common problems arise for new office L1 visa holders after the visa has been granted. Since the initial validity period is short(one year), companies oftentimes struggle to show that their operation is large enough to require a high level manager or executive at the time of renewal. In order to prevent this issue from arising, companies should take deliberate action early on to set up a structure that would support an upper level manager or executive within one year.

Going From L1 Visa to Green Card

One major L1 Visa benefit is that L1A Visa holders can make a smooth transition  to permanent residence through the EB1C visa category. Since the L1A Visa and the EB1C Visa have similar requirements, companies can oftentimes reuse much of the L1A supporting documents in support of an EB1C visa petition. 

Here are the requirements for the EB1C:

  • Qualifying corporate relationship between the foreign company and the US company
  • US company must have been doing business for at least one year at the time that the application is made
  • Employment abroad for one continuous year as a qualifying manager or executive
  • Permanent offer of employment(full time) from the US company in a managerial or executive position
  • US company must be able to pay the offered wage

You probably notice that the requirements appear similar.  However, there are some differences to be mindful of before starting an L1 Visa application. Here are the main differences…

  • For the L1 Visa, the position abroad can be managerial, executive, or specialized knowledge
  • For the EB1C Visa, the position abroad must have been either managerial or executive in nature
  • For the L1 Visa, the position in the US can be for an employee with specialized knowledge 
  • For the EB1C Visa, the position in the US must be managerial or executive

Also, it is important to understand that a higher level of scrutiny will oftentimes be applied to the EB1C application. This is due to the fact that an EB1C results in permanent residence while the L1 Visa has a finite expiration.

Common Documents Submitted with the L1 Visa Application

While the standard for the L1 Visa sounds straightforward, these applications are closely scrutinized and result in a high number of requests for evidence(RFEs) and denials. 

The RFEs have become so common that many immigration lawyers submit a bare bones initial application knowing that the receipt of an RFE is a near certainty even if a case is thoroughly documented. After receipt of the RFE, the immigration lawyer will submit the additional documents that they initially gathered. This prevents them from being in a situation where they have no additional documents to prove eligibility when the RFE arrives. 

There are a number of documents that are submitted in support of the L1 Visa petition either initially or in response to an RFE. These documents commonly include:

Demonstrating the Qualifying Corporate Relationship(US and Foreign Company):

  • Articles/Memoranda of Incorporation
  • Bylaws
  • Stock certificatesArticles of Organization

For Limited Liability Companies(LLCs)

  • Operating Agreement
  •  Meeting Minutes
  •  Membership Certificates
  •  Registration documents

Documents related to the US Company’s Ability to Pay:

  • Financial statements
  • Corporate tax returns
  • Annual reports
  • Bank account records(Last 12 months)

To Meet the One Year of Full Time Work Requirement:

  • Payroll records of the foreign company
  • The employee’s recent tax returns and tax withholding statements 
  • Letter from the foreign company’s Human Resource Director demonstrating the employee’s dates of employment and positions
  • The employee’s social security and/or insurance records 

Proving Qualifying Work Abroad– Managers and Executives(L1A Visa):

  • Job title and comprehensive list of managerial or executive duties
  • Description of how they  function at a senior level in the management or executive hierarchy;
  • List of the professionals or managers that the employee supervised along with relative dates of supervision
  • For Functional Managers–Description of how they managed the organization, department, subdivision, function or component of the organization 
  • Description of how the employee’s educational and/or prior experience qualify for them for the US position;
  • List of personnel actions that they had the ability to carry out 
  • Detailed organizational chart showing the management structure and the employee’s position within the organization

Proving Qualifying Work Abroad– Specialized Knowledge Employees(L1B Visa)

  • Explanation of  how the specialized knowledge required for the position is different than that for similar positions in the industry;
  • Statement regarding the product, service, tool etc. that involves the specialized knowledge;
  • Explain why the product, service, tool, etc.  is so “special” and how it contributes to the company’s competitive advantage
  • Statement that addresses why someone else cannot be trained to perform the job duties that involve specialized knowledge
  • Explanation regarding the beneficial impact of the employee’s work

Demonstrating that the Foreign Company Continues to “Do Business” Abroad

  • Sample invoices or contracts indicating trade in goods or services
  • Trade references
  • Articles or Promotional materials about the company

For “New Office’ L1 Visas:

  • Detailed five year business plan(this is critical!!)
  • Documentation regarding capitalization and resources of the US company
  • Evidence establishing that sufficient physical premises for the new office have been secured: lease, photos, diagram of office, etc.

Regarding the US Company and Employee’s Position in the US

  • Amount of annual salary to be paid to the employee
  • Documentation regarding the US company’s qualification to do business including business permits/licenses/registration
  • Detailed Organizational Chart
  • Resumes and job duties of those who will be supervised or managed by the employee
  • Detailed job description including an explanation for how the employee will be relieved of day to day operational tasks and responsibilities
  • Trade references
  • Articles and promotional materials
  • Employee’s CV, Degrees, certifications and awards

How to Apply for the L1 Visa

An individual L1 Visa petition is filed on Form I-129 with L Supplement which can be found HERE.

This form is sent with a supremely important employer letter that describes how the employee qualifies for L1 Visa status. The goal of providing the letter and the exhibits is to make the decision maker’s life easier by giving them a road map that clearly shows how the employee qualifies for the L1 Visa.

Filing Details for Non Canadians

L1 visa applications are typically a two step process. 

  1. First, the application is filed at the service center with jurisdiction over the employee’s place of employment in the US. 
  2. Second, after USCIS approves the application, the employee will apply for the visa at a consulate or embassy abroad

For those who are inside of the US in valid status a change of status(form I-539) can be filed simultaneously with the I-129. After approval, the employee can commence US employment.

Processing Times for the L1 Visa(I-129 Adjudication)

You can find the L1 Visa processing times by looking at the USCIS website. If you want to speed up the process, you can do so by paying for premium processing($1225) and filing Form I-907. Taking these steps will ensure a response(typically RFE or Approval) within 15 calendar days. 

After I-129 Approval(Consular Processing)

After the approval of the I-129, most applicants will apply for a non immigrant visa through the Department of State. If all goes well, this process will culminate in the attendance at an interview and issuance of the L1 Visa.

Here are some of the documents that are required for visa processing:

  • Passport valid for at least six months from the date of visa application and with at least two blank pages
  • Two passport-style photos;
  • Completed and signed electronic version of Form DS-160, Nonimmigrant Visa Application; 
  • Visa application fee;
  • Reciprocity fee(Sometimes);
  • Evidence of familial relationships of dependent spouse and children(if applicable)

Processing Times for the L1 Visa(Consular Processing)

The processing times for this stage in the process will vary by country. However, most applicants should currently(as of 11/3/2020) can expect a six month wait before the visa is issued.

Canadian Employees Have an L1 Visa Express Pass

Canadians have the privilege of being able to apply for admission in L1 status by presenting an I-129 and supporting documentation at the border.

Customs and Border Protection (CBP) will render the decision. 

If they approve the L1 Visa application, the CBP will issue an I-94 card on the same day which the employee can use to travel. CBP will simultaneously forward a duplicate original copy of the application to USCIS. They will review the application and then issue a receipt and eventually, an approval notice.

The Blanket L1 Visa--A Streamlined Process for Large Organizations

In addition to the standard two step L1 visa process that many small and medium sized businesses use, there is a second type of process that is available to larger organizations. 

This streamlined process allows qualifying employers to apply for L1 visas at the consulates, without first having to obtain approval from USCIS. 

Here are the requirements for the L1 Blanket:

  • The petitioning company and their related companies must be engaged in commercial trade or services;
  • The petitioning company must have an office in the US that has been doing business for at least one year;
  • The petitioning company must have has three or more domestic and foreign branches, subsidiaries, or affiliates; and
  • The petitioning company and related qualifying organizations The petitioner and the other qualifying organizations must:
      • Have obtained approval of petitions for at least ten “L” managers, executives, or specialized knowledge professionals during the past 12 months; or
      • Have US subsidiaries or affiliates with combined annual sales of at least $25 million; or
      • Have a US work force of at least 1,000 employees

The L2 Visa EAD for Spouses of L1 Visa Holders

One major benefit of the L1 Visa is that spouses of L1 Visa holders(who have L2 Visa Status) can apply for employment authorization documents (EADs). The following documents should be prepared and filed to request the L2 EAD:

  • Form I-765
  • G-28(If using an immigration lawyer)
  • Statement from the US company, confirming the employment of the spouse
  • Copy of biographic page of passport(for the L2 Visa holder spouse)
  • Copy of L2 visa
  • Copies of I-94 records for both spouses
  • Copy of the spouse’s L1 Visa and passport
  • Copy of marriage certificate

About L1 Visa Extensions

Extensions for New Office L1 Visas

After one year has passed since the approval of the L1 Visa, the US company can file for an extension of the L1 Visa by filing the I-129 along with the following documents:

  • Evidence that the US and foreign companies remain qualifying companies;
  • Evidence that the US company has been doing business on a continuous basis
  • A statement that summarizes the employee’s duties(past and future) in the US
  • Details regarding the personnel structure of the US company
  • Evidence of the financial status of the US company

Extensions for Standard L1 Visas(Not “New Office”)

Standard L1 Visa extension applications will not be subject to the same level of scrutiny that is applied to new office renewals. However, these applications still require thoughtful planning. A typical extension request includes the I-129, similar evidence that was originally submitted and a refreshed employer letter demonstrating how the employee continues to qualify  for L1 Visa status. 

Timing of the L1 Visa Extension

An extension of L1 Visa status may be filed up to six months in advance of status expiration. 

An L1 Visa extension that is filed before the expiration of the status will provide an additional 240 days of employment authorization with the US company while the extension request is pending. 

NOTE: In this situation, once the original L1 status expires, the employee should not travel internationally unless absolutely necessary. Leaving the country would result in being stuck outside the United States until the petition and visa application is processed.

L1 Visa Guide | Conclusion

Hopefully this information helps you to understand the L1 Visa process and requirements. 

After you learn about the L1 Visa, please reach out to one of the many talented US immigration lawyers who can give you specific guidance that is tailored to your unique situation.