By: Melissa G. Nolan
The L-1 visa category permits a foreign company to transfer a foreign employee to a related U.S. company, to carry out the same or similar function at the U.S. affiliate as the employee is performing at the related foreign company. The U.S. employer must file a petition with the Department of Homeland Security to obtain permission to transfer the foreign national to work in the U.S. for a temporary period. The L-1 classification includes 2 types of personnel:
Managers/Executives (L1A): The L1A status is reserved for managers and executives coming to the U.S. on a temporary basis. A foreign worker may be admitted to the U.S. in L1A status for the period of time required by the employer up to a maximum period of three years for the initial stay. The total length of stay may extend to seven years for executives and managers.
Specialized Knowledge (L-1B): The L1B status is reserved for professionals (i) having a unique knowledge of the company’s product(s) or services and its application in international markets or (ii) an advanced level of expertise in the company’s processes and procedures. The total length of stay for an L1B is 5 years. Characteristics of an employee with specialized knowledge include:
- Knowledge that is valuable to the employer’s competitiveness in the market place;
- Unique qualifications to contribute to the U.S. employer’s knowledge of foreign operating conditions;
- Utilization as a key employee abroad, having been given significant assignments which have enhanced the employer’s productivity, competitiveness, image, or financial position; and
- Knowledge which can be gained only through extensive prior experience with that employer.
The alien employee must have completed one continuous year of employment outside the U.S. with the overseas company within the preceding three years. Each day in the U.S. during the preceding year adds one day to the total time the alien must have been employed oversees by the company.
The company for which the employee has worked abroad must be related to the U.S. company in a specific manner. The types of business relationships that will qualify are:
- Different branches of the same company
The two companies do not need to be in the same line of business. Both the U.S. company and the foreign company must continue doing business during the entire period of the alien’s stay in the US.
The foreign worker may be the sole owner, or a majority owner, in either or both companies.
If the L-1 visa petition is approved, the foreign worker’s spouse and children under the age of 21 may accompany the foreign worker to the U.S. in L-2 visa status. The spouse may also apply for authorization to work in the U.S.
The U.S. employer must file a petition with the Department of Homeland Security to obtain permission to transfer the foreign worker to the U.S. for a temporary period. Once approved, the petition is sent to a U.S. consulate where the alien can obtain an L-1 visa to enter the U.S. However, Canadians simply may apply for the visa status at the port of entry without obtaining prior approval from Department of Homeland Security. Also, if the foreign worker is already present in the U.S. in a different status, the worker’s status may be changed to L-1 without needing to return home to apply for the visa.
New Office Requirements:
If the U.S. entity has been in operation for less than one year at the time the petition is filed with Department of Homeland Security, the application is considered a “new office petition” and there are additional requirements. In that event, the following must also be established:
- Sufficient physical premises for the office have been secured; and
- Within one year, the intended U.S. operation will support an executive or managerial position. To establish this, the employer must provide evidence regarding:
- The proposed nature of the office, describing the scope of the entity, organizational structure, and financial goals;
- The size of the US investment and financial ability of the foreign entity to remunerate the beneficiary and to commence doing business; and
- The organizational structure of the foreign entity.
The “new office” petition will only be approved initially for one year. The employer will need to file a petition prior to the expiration to extend the status, upon a showing that the U.S. entity has become an active and operating business.