L - Intracompany transferees
The L-1 visa category was established to facilitate the transfer of foreign personnel of an international company into the United States. The L-1 visa is not limited to large multinational corporations but may be used by companies of any size who have overseas personnel that qualify for transfer in this category. Furthermore, for management and executive employees, coming on an L-1 visa may be consistent with a faster route for obtaining Lawful Permanent Residence in the United States than the cumbersome Labor Certification process.
L-1 visas are divided into two categories: L-1A visas for intracompany transferees who will be working in an executive or managerial capacity; and L-1B visas for intracompany transferees who will be working in a specialized knowledge capacity. Both L-1 categories are eligible for an initial approval of up to three years. L-1A status may be extended twice in two-year increments, creating a total seven (7) year maximum limit on L-1A status. L-1B status may be extended once for a two-year increment, creating a total five (5) year limit on L-1B status. (There is no provision for extending L-1 status beyond these limits as there is provision for the 6-year limit on H-1B status under the American Competitiveness in the Twenty-First Century Act, commonly called “AC21”. These 7 and 5 year limits do not apply to certain “commuter” L-1 workers who spend less than 50% of each year in the United States.)
The foreign worker who seeks to be sponsored for an L-1 visa is referred to as the “intracompany transferee.” For a US employer to sponsor an intracompany transferee, the US employer must show it has one of several designated relationships with the intracompany transferee’s employer overseas. The overseas employer must be a “qualifying organization,” which means it must be related to the US employers as a parent company, subsidiary company, affiliate company or a branch office.
A “parent” is a firm, corporation, or other legal entity which has subsidiaries. A “subsidiary” is a firm, corporation, or other legal entity of which a parent owns, directly or indirectly, more than half of the entity and controls the entity; or owns, directly or indirectly, half of the entity and controls the entity; or owns, directly or indirectly fifty percent of a 50-50 joint venture and has equal control and veto power over the entity; or owns, directly or indirectly, less than half of the entity but in fact controls the entity. An “affiliate” is one of two subsidiaries, both of which are owned and controlled by the same parent or individual or one of two legal entities owned and controlled by the same group of individuals, each individual owning and controlling approximately the same share or proportion of each entity. A “branch” is an operating division or office of the same organization housed in a different location.
One Year of Full-Time Employment Overseas
Another key requirement is that the intracompany transferee must have actually worked for a “qualifying organization” for at least one full year within the past three year period leading up to the filing by the US employer of the L-1 petition with USCIS. The one year of employment does not need to be a continuous unbroken year, but it must be at least one year in the aggregate (with all the aggregated employment occurring during the past three years). Any time spent in the United States (for instance, as a B-1 business visitor permitted to attend meetings at the prospective US employer, but not permitted to work for that US employer) cannot be counted towards accruing the one year of full-time employment abroad with a qualifying organization.
The one full years’ employment issue arises because of instances where a US employer may have identified a foreign worker living and working overseas for an unrelated company. This is often a foreign worker whom the US employer would like to immediately bring to the United States but for whom an H-1B visa is unavailable or inapplicable (for example, to fill a position that is highly technical but nonetheless does not require at least a Bachelor degree). If the foreign worker joins a qualifying organization and begins working for that qualifying organization to build up to one year of full-time employment, any time spent visiting the US employer will not count towards accruing one full year of work abroad to permit filing of an L-1 visa petition.
“Capacity” of Employment Overseas and in the United States
The intracompany’s work overseas must be executive or managerial or specialized knowledge in nature. When coming to the United States, the intracompany’s new position in the United States must also fit within one of these three specific categories of being executive or managerial or specialized knowledge in nature. It is most common that a transferee who works in one of these three capacities overseas will continue to work in that same capacity in the United States. This is not required, however. For instance, it is permitted for a transferee who worked in a specialized knowledge capacity overseas to be promoted to a management position in the United States. And vice versa, a transferee working in a managerial capacity overseas might be coming to a small office in the United States and working in a specialized knowledge capacity. What is critical to approval is that both the work overseas and the work to be performed in the United States fit within one of the three following recognized capacities.
Working in an executive capacity refers to an assignment within an organization in which the transferee primarily: a) directs the management of the organization or major component or function thereof; b) established the rules and policies of the organization, components, or functions; c) exercises wide latitude in discretionary decision-making; and d) receives only general supervision or direction from higher level executives, the Board of Directors, or stockholders of the organization.
Working in a managerial capacity refers to an assignment within an organization in which the transferee primarily a) manages the organization or a department, subdivision, function, or component or b) 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 thereof; c) has the authority to hire and fire or recommend other personnel actions (promotion, leave authorization, etc.) if another employee or other employees are directly supervised; if no other employee is directly supervised, functions at a senior level within the organizational hierarchy or with respect to the function managed; and d) exercises discretion over the day-to-day operations of the activity or function for which the employee has authority. A first-line supervisor is not considered to be acting in a managerial capacity merely by virtue of the supervisor’s supervisory duties unless the employees supervised are professional.
Specialized Knowledge Capacity
Working in a specialized knowledge capacity refers to an assignment within an organization in which the transferee primarily employs advanced knowledge of the company’s product, service, research, equipment, techniques, management, or other interests and their application in international markets, or an advanced level of knowledge or expertise of the employer's processes and procedures.
L-1 visa petitions may be filed by established, existing US employers or may be filed by a US employer that is a “new office” of a qualifying organization overseas. “New office” L-1 petitions require additional proof to ensure that sufficient premises have been secured in which the new company and the intracompany transferee will operate, with a detailed business plan as to the goals for the new office in its first year. New office L-1 petition approvals are limited to one year, so that USCIS may assess at the time of seeking extension of status (for an additional two years) whether the new office has in fact been doing business, what the financial status of the new office is, and what, if any, staffing has been added during that first year.
“Dual Intent” Permitted for L-1 Visa Applicants
Most applicants for non-immigrant (temporary) visas such as B-1, F-1, J-1, R-1, etc., must intend to return to the home country at the completion of the purpose of the temporary trip to the United States. Having “immigrant intent” is the most common ground of refusal for non-immigrant visas. (The law presumes that every foreign citizen who enters the United States intends to “immigrate”, i.e., to stay permanently, and therefore puts the “burden of proof” onto the non-immigrant visa applicant to prove intent to return to the home country at the end of the temporary stay.)
However, similar to the H-1B visa, the L-1 visa permits “dual intent.” This simply means that while an L-1 visa applicant is expected to intend to return to the home country if/when the temporary L-1 assignment ends, it is permitted for the L-1 worker to also have the intent to stay permanently in the United States if able to do so legally through either employer sponsorship or other legal avenue. Thus, an L-1 visa may not be denied by a US Embassy or Consulate solely on grounds that the US consular officer believes the L-1 visa applicant intends to seek Permanent Resident status in the United States. (This rule extends through the Permanent Residence process into the final stage, permitting L-1 workers who have filed an I-485 application for permanent residence to continue to use their L-1 visa to travel without obtaining “Advance Parole” travel papers first.)
Spouses & Children / Work Authorization for Spouses
Dependents (spouses and unmarried children under age 21) are permitted to come to the United States on L-2 visas for the same length of time as the L-1 principal worker. It should also be noted that, unlike the H-4 visa for dependents of H-1B workers, spouses of L-2 workers are permitted to apply to USCIS for an Employment Authorization Document (EAD card). The EAD card allows the L-2 spouse to obtain with any employer in the United States for the duration of time the L-1 principal worker continues to maintain L-1 status. Children are not permitted to apply for EAD cards based on L-2 status.