L-1A/B (Nonimmigrant Visas)
The L-1A visa enables a foreign company to transfer its executive or manager to its U.S. office, affiliate company or subsidiary. This visa also enables a foreign company which does not yet have a U.S. office to send an executive or manager to the United States with the purpose of establishing one. The L-1B visa enables a foreign company to transfer a professional employee with specialized knowledge to its U.S. office, affiliate company or subsidiary. The spouse and unmarried children under 21 of the L-1 visa holder are admitted as L-2s and are able to study full-time in the U.S. The L-1 visa holder’s spouse is eligible to work in the U.S. too.
L-1 visa is initially valid for three years (but for employees entering the U.S. to establish a new office, the initial period of stay will be one year) and can be extended in increments of two years, up to a maximum limit of seven years for L-1A visa holder, or five years for L-1B visa holder.
While the L-1 visa is a nonimmigrant visa, its holder is allowed to have dual intent, which means the L-1 visa does not preclude an individual from seeking lawful permanent residence while pursuing or being present in the United States on a L-1 visa. But unlike H1-B visa, L-1 visa does not have an annual quota and does not require the foreign employee be paid a wage commensurate with his/her position and job title, though the U.S. employer would still have to comply with the state and federal minimum wage laws.
To qualify for L-1 visa, four elements must be present to the USCIS:
- The U.S. employer must have a “qualifying relationship” with the overseas entity (i.e., parent company, branch office, subsidiary, or affiliate).
- The foreign employee must have been working for the qualifying overseas entity for one continuous year out of the last three years prior to entry into the United States. Extended trips or visits to the United States may be considered by the USCIS as an interruption of the one-year continuous overseas employment requirement.
- The employment with the overseas company must have been in a managerial, executive, or specialized knowledge capacity.
- The foreign employee’s work for the U.S. employer must be in a managerial, executive, or specialized knowledge capacity.
Under the L-1 visa context, the definitions of the “managerial capacity” and the “executive capacity” are essentially the same as those in the EB-1C, you may refer to our discussion of these definitions in the EB-1C section.
With respect to the “specialized knowledge”, a foreign employee will be deemed to have “specialized knowledge” if he or she has (i) a “special” knowledge of the company’s product/service and its application in international markets; or (ii) an “advanced” level of knowledge of the processes and procedures of the company.
The process of obtaining a L-1 visa is laid out below:
- The U.S. employer as petitioner must first file the Form I-129 (including the L-supplement) with the USCIS along with documentation proving the company and the foreign employee’s eligibility for L-1 visa. The foreign employee is the beneficiary of the petition.
- If the USCIS approves the petition, it will issue a notice of action. This will allow the foreign employee to either apply for a visa at a U.S. embassy or consulate outside of the U.S. or apply for a change of status while he/she is inside the U.S.
- If the foreign employee is outside the U.S., he/she needs to fill out the DS-160 on-line application and bring the confirmation to the consulate or embassy for a personal interview. The foreign employee will be issued a L-1 visa if he/she passes the interview.
Special Rule for New Office L-1 Petition
If the U.S. employer that the foreign employee will be working for has been “doing business” for less than one year, it is considered a new office and the USCIS will strictly scrutinize its L-1 petition. To get a better chance of approval, it is recommended to include the following documentation in the I-129 petition:
- Proof of a physical space large enough to house the new office, or alternatively, a lease for the new office space.
- Proof that the foreign employee has 1 year of continuous full-time employment with the foreign company as either a manager or executive. In this case, a copy of foreign tax returns may be required.
- A business plan proving that within one year of operations in the U.S., the business will support a managerial or executive position.
- A business plan showing the size of investment in the U.S.
- The foreign company’s copies of bank statements to prove that the size of the foreign entity is capable of launching business in the U.S. and remunerating the foreign employee.
- A chart showing the foreign company’s organizational structure.
Special Note for Entrepreneur L-1 Applicant
If the beneficiary seeking to apply for the L-1A visa is also the owner or a major stockholder of the company, the petition must include evidence that the beneficiary’s services are to be used for a temporary period, and that the beneficiary will be transferred back to the company abroad.
This evidence is typically supplied in the form of a letter from the company’s manager in home country. The letter declares the length of the assignment and the company’s expectation that the employee will be reassigned in the future. While the letter may seem to indicate that the company and/or the employee intended that the work assignment be a temporary one, this requirement should not affect the employee’s ability to adjust status under the dual intent doctrine if the employee’s plans change and he/she ultimately decides to remain in the United States.
Can L-1 visa be converted into Green Card via EB-1C petition?
It depends. If a business has been running for over one year, the executive or manager can petition for permanent residence without having to apply for labor certification, provided the executive or manager can meet the qualification for EB-1C immigrant visa.
Please note, EB-1C requires the foreign individual work for one year in the overseas company within the three years prior to submission of the green card petition. If the foreign individual has spent the last three years in the U.S. under the L-1A, he/she would not qualify. However, if the foreign individual has been working in the overseas company for at least a year and then transfer directly to the U.S. branch under the L-1A, he/she will be eligible to apply for the EB-1C for the next two years afterwards.
L-1 visa is an extremely complex visa category that requires experience, careful preparation, and strategy. In recent years, USCIS has become much more strict and critical on L-1 petitions. Polaris Law Group would be happy to walk you through the process step-by-step, conduct an in-depth consultation, and help you implement the best course of action in your L-1 petition.
DISCLAIMER: This article includes general information and interpretation of the law. The materials here are for information purpose only and may not reflect the most current development of immigration law. The materials here are not intended, and must not be taken, as legal advice on any particular facts or circumstances. You should contact an attorney for advice on specific legal issues or problems.
