An alien (non-immigrant beneficiary or a foreign worker) who worked full-time for a parent, subsidiary, affiliate of a “qualifying organization” for one (1) continuous year outside the United States preceding the three (3) year period from the date of the application to USCIS (with few exceptions towards the counting of the three (3) year period) in a “managerial” or “executive capacity” or in a position requiring “specialized knowledge,” qualifies for L-1 visa. The beneficiary employee is called “intra-company transferee.” There is no cap on the number of petitions for L-1 visa and can be applied round the year. Below content is informational only, please feel free to contact us for appointment via email or phone to discuss regarding your L-1 petition.
What is a qualifying organization?
A qualifying organization can be a parent, subsidiary, affiliate, with employees in both the United States and foreign country who actively engage in providing goods and/or services in the United States and abroad. Exception applies to “new offices,” where the beneficiary is coming to the United States to setup the office. This beneficiary usually comes to set-up new office under the category of L-1A.
Ownership & Control: The qualifying organization petitioner need to prove ownership of the organization, and any control they may have over subsidiary and affiliate by providing evidence in the form of “articles of incorporation,” “bylaws,” ownership stake (stock ownership) in subsidiary, affiliate documents, profit & loss statements etc, along with signed statements from authorized official.
Is my organization eligible for "blanket petition?"
Blanket petition option is available for commercial trade or services organizations that have at-least three (3) entities in the foreign country and the United States. The office in the United States need to be in business for at-least a year along with proving any ownership & control stake in the subsidiary or affiliate foreign company. Another condition for blanket petition option organization is below. They have to meet at-least “one” of the below criteria:
1. At-least ten (10) L-1 approvals within the preceding 12 month period of this blanket petition.
2. Annual sales of the combined US subsidiary or affiliate is at-least $ 25 million.
3. US workforce of at-least 1,000 employees.
For blanket petition purposes, the L-1B beneficiary must be a “specialized knowledge” professional which we will discuss about in the below heading.
L-1A Visa (managerial or executive capacity)
L-1A Visa can be categorized into two (2) categories. They are : 1. Managerial capacity; and 2. Executive capacity.
1. Managerial Capacity: The statutory definition of this term can be: An assignment within the organization in which the employee primarily “(i) manages the organization, or a department, subdivision, function, or component of the organization; (ii) ‘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; (iii) if another employee or other employees are ‘directly supervised,’ has the authority to hire and fire or recommend those as well as other personnel actions (such as promotion and leave authorization) or, if no other employee is directly supervised, ‘functions’ at a senior level within the organizational hierarchy or with respect to the function managed; and (iv) exercises discretion over the day-to-day operations of the activity or function for which the employee has authority….” 8 C.F.R. § 214.2(l)(1)(ii)(B).
There are certain key terms in the above statutory definition: They are (a) what is an “essential function” within the organization? (b) Who is a “functional manager” within the organization? These questions need to be answered by the petitioner.
The petitioner has the burden to show that the beneficiary will manage as opposed to performing the functions of the organization.