L-1 Visa

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.

 

2. Executive Capacity:

The L-1A executive statutory definition includes who “(i) directs management of the organization or controls a major component or function of the organization, (ii) establishes its goals and policies, (iii) exercises wide latitude in discretionary decision-making, and (iv) works under only the general direction of higher executives, members of the board of directors, or stockholders.” 8 C.F.R. § 214.2(l)(1)(ii)(C).

Length of Stay: The L-1A Visa is initially granted for three (3) years unless the petitioner has a start-up office operation in the United States, in which case it will be awarded for one (1) year. Extension of stay are granted in two (2) year increments for up to a total period of seven (7) years.

Exception: Limitations of maximum stay is not applicable to individuals who are working seasonal, less than six (6) months or less in the United States. Part-time employees who reside abroad and regularly commute to the United States are also exempted from the limitation.

L-1B Visa (specialized Knowledge)

L-1B Specialized knowledge can be defined as “… 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 C.F.R. § 214.2(l)(l)(ii)(D).

The petitioner can satisfy the criteria by satisfying either of the prong below:

(i) An individual is considered to be employed in a capacity involving specialized knowledge if that person “…has a special knowledge of the company product and its application in international markets….” Id.

OR

(ii) An individual is considered to be serving in a capacity involving specialized knowledge if that person “…has an advanced level of knowledge of processes and procedures of the company….” Id.

In plain language, the petitioner has the burden to show illustrated in the following examples:

1.The beneficiary knowledge of the foreign entity processes, techniques, and procedures should be advanced in comparison to other company employees. It is also accepted to differentiate the knowledge from that held by similarly placed employees at similar competitive businesses in existence.

2. The knowledge cannot be easily imparted by session, or watching video of “know-how” of the company for “few hours.”

3. If the software tools or technology used in the industry is common and any person in the industry can do such a task, then it is not specialized knowledge of the company product.

Length of Stay: The L-1B Visa is initially granted for three (3) years unless the petitioner has a start-up office operation in the United States, in which case it will be awarded for one (1) year. Extension of stay are granted in two (2) year increments for up to a total period of five (5) years.

L-1B to L-1A porting: At-least 6 months prior to the expiration of five (5) year period, if the petitioner is willing to convert the job position from L-1B to L-1A by applying USCIS, then upon approval additional work authorization will be granted for a total of seven (7) years.

Exception: Limitations of maximum stay is not applicable to individuals who are working seasonal, less than six (6) months or less in the United States. Part-time employees who reside abroad and regularly commute to the United States are also exempted from the limitation.

One (1) Year foreign employment requirement

General Rule: The beneficiary need to work for the petitioner for a period of at-least one (1) year outside the United States at the petitioner organization, subsidiary, or affiliate within the three (3) year preceding the application date to the USCIS.

This general rule is applicable in situations where the beneficiary is currently not working for the organization, beneficiary is on L-1 status but working for a different employer, another status such as H-1B, F-1, H-4, L-2 and working for a different employer.

Exception to one (1) year foreign employment requirement

Exception: After working for the petitioner for one (1) year in the foreign country, if the beneficiary is working for the petitioner orgnization in the United States on another visa such as H-1B, F-1 OPT, or any Employment Authorization Document (EAD), then the amount of time spent by the beneficiary with the petitioner will not be counted against the three (3) year limit.

Issues faced for L-1 A Visa

The petitioner sometimes unable to articulate properly for L-1 A manager visa purposes explaining (a) what is an “essential function” within the organization? (b) Who is a “functional manager” within the organization? Sometimes, the number of personnel in the organizational chart that person is managing plays a role in the decision making process.

Issues faced for L-1 B Visa

The petitioner need to justify that the “Specialized knowledge” possessed by the beneficiary which cannot be easily imparted by attending a couple of class sessions at the organization or know-how videos for few hours. The reason for applying for this L-1B benefit is your inability to find US person with that “specialized knowledge” who could do the job without disruption and financial loss to your organization.