L-1 Intracompany Transfer

The L-1 intracompany transferee classification, which originated with the 1970 amendments to the Immigration and Nationality Act, was designed to facilitate the temporary transfer of foreign personnel employed in management, executive and specialized knowledge positions, to the United States, to continue employment with an affiliated U.S. entity.

There are two sub classifications: L-1A, for managers and executives; and L-1B, for specialized knowledge workers.  Dependents of L-1s (L-2s) are eligible to work in the United States with an employment authorization document (EAD) requested in a separate Form I-765 application. EAD eligibility is not based on the dependent’s qualifications, nor does it require a prospective job offer.

Limitations on Stay

The initial approval period is up to three-years, unless the U.S. enterprise is less than one year old (New Office L-1), in which case the approval period is limited to one-year.  Extensions of stay are granted in two-year increments.  The limit on continuous stay in the United States for L-1A executives and managers is seven-years.  For L-1B specialized knowledge workers, the limit is five years.  Time spent outside of the United States does not apply towards either the seven or five year limit.  The limitations also do not apply to aliens whose employment in the United States is seasonal, intermittent, or for an aggregate of six months or less per year.

L-1 to Green Card

L-1 visa holders employed as managers or executives abroad commonly transition from temporary L-1 status, to lawful permanent resident (green card) status, via the “EB-1C” multinational manager or executive immigrant visa category.  The requirements for the L-1A and the EB-1C are almost identical, but keep in mind:

  • Someone employed in a specialized knowledge (L-1B) capacity abroad does NOT qualify for the EB-1C multinational manager or executive.
  • It is possible for a manager abroad who is transferred to the US as a specialized knowledge (L-1B) worker, to qualify for the EB-1C – as long as the U.S. EB-1C position offered is managerial or executive.  This scenario usually involves a manager, transferred as a specialized knowledge worker, then promoted to a manager position.
  • Approval of an L-1, particularly of the “New Office” variety, does guarantee approval of the EB-1C green card.  The EB-1C requires the U.S. petitioner to be actively engaged in doing business for at least one year at the time of filing of the petition.  But beyond meeting the one-year threshold, the petitioning U.S. company must be of a sufficient organizational complexity to support a manager or executive level position.

Continuation of Business Abroad

The L-1 requires the foreign employer or a qualifying organization operating in at least one other country, to continue “doing business” for the duration of the transferee’s stay in the United States. Doing business is defined as the regular, systematic, and continuous provision of goods and/or services by a qualifying organization and does not include the mere presence of an agent or office.

Prospective United States Position & Qualifying Foreign Employment

In the United States, the transferee must be destined to an executive or manager level role, or to a position which requires the application of specialized knowledge of the company products and/or processes.

Qualifying foreign employment must have occurred within the three-year period prior to admission to the United States, and must have been for full-time and continuous, off US soil.  Time spent in the United States does not count towards meeting the qualifying foreign employment period.

Function Managers

The Immigration Act of 1990 (IMMACT) made several modifications to the existing L category. IMMACT changed the definition of manager to include “functional managers,” or those managers that manage an essential function within the company.  The presenting of functional managers in L-1 (and EB-1C) petitions has increased, as companies move away from traditional reporting relationships, towards flatter organizational hierarchies.

Even if a position has zero full-time direct report employees, it may still qualify as managerial, if it primarily involves the management of a critical function within the organization, such as sales, marketing, accounting, etc.

But, the functional manager must still primarily work through other people, who must operate at a professional-level.  In other words, even functional managers should spend the majority of their time delegating and otherwise managing the work of other professionals.  Independent contractors, professional service firms, and employees managed abroad, should also be considered.

Qualifying Corporate Relationship

The relationships of the foreign and U.S. business entities must be carefully considered and documented on a case by case basis, to demonstrate qualifying corporate relationship.  The general rule is that one company that is party to the transfer must have “effective control” of the other company – or both must be “effectively controlled” by the same third company, individual, or group of individual shareholders. Essentially, the U.S. and foreign organization must be related as parent-subsidiary, affiliates, branch office or joint-venture.

New Office L-1s

This sub-set of the L-1 applies when the U.S. entity is less than one-year old. Approval is granted for one-year only, but may be extended in two-year increments, provided the U.S. entity is able to support an extension.  New Office L-1s are commonly used by established foreign businesses seeking to expand in the United States.

The New Office L-1 petition must demonstrate that:

  • Sufficient physical premises to house the new office have been secured;
  • The beneficiary has been employed for one continuous year in the three year period preceding the filing of the petition in an executive or managerial capacity and that the proposed employment involved executive or managerial authority over the new operation; and
  • The intended United States operation, within one year of the approval of the petition, will support an executive or managerial position, supported by information regarding:
  • The proposed nature of the office describing the scope of the entity, its organizational structure, and its financial goals;
  • The size of the United States investment and the financial ability of the foreign entity to remunerate the beneficiary and to commence doing business in the United States; and
  • The organizational structure of the foreign entity.

Below pleased find the USCIS Request for Evidence (RFE) template for New Office L-1s. RFEs can occur after the initial submission to USCIS.  An RFE means USCIS decided that an insufficient amount of evidence was provided to approve the petition.  This template provides useful insight into how USCIS adjudicators are trained to review New Office L-1 petitions: USCIS L-1 New Office Request for Evidence Template

New Office L-1 Extensions

Anyone contemplating a New Office L-1 must also consider and prepare for the extension well in advance.  As noted above, New Office L-1s are granted for one-year only.  To get an extension, U.S. immigration authorities expect the U.S. entity to have developed sufficiently, to the extent that it will support a managerial/executive position.  Often, by the time the transferee is actually in the U.S. in L-1 work authorized status, there is little time before the extension must be filed and so planning ahead is critical.  Below please find the USCIS Request for Evidence (RFE) template for New Office L-1 Extensions: USCIS L-1 New Office EXTENSION Request for Evidence Template

Legal Resources

USCIS L-1A Home Page: https://www.uscis.gov/working-united-states/temporary-workers/l-1a-intracompany-transferee-executive-or-manager

USCIS L-1B Home Page: https://www.uscis.gov/working-united-states/temporary-workers/l-1b-intracompany-transferee-specialized-knowledge

USCIS L-1B Specialized Knowledge Policy Memo 2015 https://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/2015/L-1B_Memorandum_8_14_15_draft_for_FINAL_4pmAPPROVED.pdf

 

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google+ photo

You are commenting using your Google+ account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

w

Connecting to %s