The L1 visa is designed for companies who wish to transfer their talented employees to the US to help expand their business. To qualify for the L-1 visa, such companies have to demonstrate:
1) A qualifying corporate relationship between the entity abroad and the entity in the United States and
2) Employment that qualifies for an L1 visa.
THE CORPORATE RELATIONSHIP REQUIRED FOR AN L1 VISA
The Qualifying Corporate Relationship
In order to qualify for an L1 Visa, there must be a qualifying corporate relationship between the entity abroad and the entity in the US to which the employee will be transferred.
The “Qualifying Corporate Relationship” Standard:
Both the company abroad at which the foreign national has worked in the past and the US company to which he or she is transferring must be “qualifying organizations.”
Qualifying organizations are those that have a qualifying relationship with the corresponding organization and will be doing business for the duration of the foreign national’s stay in L1 status.
Types of Qualifying Corporate Relationships for the L1 Visa
There are three types of qualifying corporate relationships for the purpose of the L1 Visa. The relationships are:
The Parent/Subsidiary Relationship
A parent/subsidiary relationship exists when one of the qualifying organizations exercises
managerial 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. When the common owner is a group of individuals, the regulations require that the group must own and control “approximately” the same share or proportion of each entity.
Branch Office as a Qualifying Corporate Relationship
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.”
ELIGIBLE EMPLOYEES FOR THE L1 VISA
If there is a qualifying corporate relationship in place, the next step is to examine if the employee qualifies for the L1 Visa. There are two types of eligible employees that are discussed below.
The Two Types of L1 Visa Employees
There are two different classes of workers who qualify for an L1 Visa:
1) L1A status is used by companies who seek to bring managers and executives into the United States.
2) L1B status is reserved for workers with specialized knowledge of the company’s products or procedures.
One Year of Employment Abroad is Required
In order to qualify for the L1 Visa, the foreign worker must have been employed by the qualifying foreign entity in a managerial, executive or specialized knowledge capacity for “one continuous year of full-time employment abroad.”
L1A Classification for Managers and Executives
In addition to working for a qualifying organization abroad for the requisite time, the
employee that is seeking to transfer to the US must also have worked in a
managerial, executive, or specialized knowledge capacity for that entire period.
There are three general types of employees who utilize the L1A Visa. The employees include traditional managers that directly supervise other professionals, functional managers that manage a process within the organization and executives.
Managerial Employment Requirements:
To meet the definition of “managerial capacity” the employee must primarily:
(1) Manage the organization, or a department, subdivision, function, or component of the organization;
(2) Supervise and control the work of other supervisory, professional, or managerial employees, or manage an essential function within the organization, or a department or subdivision of the organization;
(3) Have the authority to hire and fire; and
(4) Exercise discretion over the day-to-day operations of the activity or function for which the employee has authority.
In addition to traditional managers, functional managers can also utilize the L1A category. A functional manager does not directly supervise other employees over whom he or she has authority to hire and fire. Rather, the functional manager operates at a senior level within the organization without directly supervising and controlling the work of immediate subordinates.
An employee may qualify for an L1A Visa based on Executive Capacity if he or she spends more than half their time
(1) Directing the management of the organization or a major component or function of the organization;
(2) Establishing the goals and policies of the organization, component, or function;
(3) Exercising wide latitude in discretionary decision-making; and
(4) Receiving only general supervision or direction from higher level executives, the board of directors, or stockholders.
L1B Specialized Knowledge Employees
If the employee does not meet the requirements of the L1A Visa because they are not a manager or an executive, it would be wise to evaluate if they qualify for an L1B Visa. The L1B is reserved for employees with specialized knowledge. “Specialized knowledge,” is ambiguously defined in 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.” In order to qualify for an L1B, the employee must have possessed the specialized knowledge for a full year prior to the filing of the petition.
Features of the “new office” L-1
Entrepreneurs, start-ups and organizations looking to open a new office(doing business in the US for less than a year) can transfer workers to the new office if the other requirements of the L1 Visa are met. However, there are some unique features of new office L1 visas that are worth mentioning:
1) Initial duration is for one year vs three years for other L1 Visas
2) if the proposed position is managerial, the organization must show that the office will support an executive or managerial position within one year of approval of the petition
FEATURES OF L1 VISAS
Initial Length of Stay
The initial length of stay on an L visa will depend on the type of classification that is received. Both the L1A visa and the L1B visa are valid for an initial period of three years except in the case of a new office L1. As mentioned above, the new office L1 is valid for an initial period of one year.
The L1A is the most advantageous type of L Visa to possess since the validity period can be extended twice by two years after the initial validity period for a total period of stay of seven years. The L1B visa by contrast can be extended only once for an additional two-year period, for a total period of stay of five years.
Employment Authorization for Spouses
An additional benefit of the L1 Visa is that the spouses of the L1 Visa holders are eligible to receive an employment authorization document.
L1 Visas are a great option for organizations that are looking to expand their operations into the US. Preparation of L1 visa petition and supporting documentation is a complex process. Therefore, it is wise to contact an immigration lawyer who will be able to guide you through the process and minimize the likelihood of costly denials.