WORK VISAS: Employee Transfer (L-1 Visa)
This is a continuation of our series on employment visas. (See H1-B and E-2 articles) The L-1 program is based on an intracompany transfer and has been very popular because it provides a cost-effective means of gaining both resident status and permission to work.
- Are you a manager, executive or an employee with “specialized knowledge?
- Have you been working with the same company outside of the US for at least one continuous year within the past three (3) years?
- Will you be coming to the US to open a new office for your company?
- Will the new office be related to the company you work for now?
- Will the company you work for now continue to do business even after you come to the US?
If you can answer “yes” to all of these questions, you may be a good candidate for the L-1 visa classification.
I. HISTORY OF THE L-1
Having some knowledge of how a particular visa program began and the purpose for which it was intended will likely improve your chances of successfully petitioning for the visa. The L-1B visa classification began almost fifty years ago (in 1970), so it is very well-established and has evolved over time.
The L-1 Visa is designed for non-citizens who have been employed continuously for one year by a company in a foreign country and who now wish to work for the same company in the US in a capacity that is managerial, executive, or involves specialized knowledge.
Congress reorganized the quota system in 1965 and that reorganization was causing significant immigrant visa processing delays. This was, in particular, causing trouble for multinational companies seeking to rotate executive and managerial personnel into the United States. In order to address this situation, Congress created the L category. This is what the House Report says about the program:
Experience with the operation of the Immigration and Nationality Act has clearly indicated that there is a need to modernize certain provisions regarding the admission of nonimmigrants…. The testimony of witnesses clearly establishes that existing law restricts and inhibits the ability of international companies to bring into the United States foreign nationals with management, professional, and specialist skills and thereby enable American business to maintain and improve the management effectiveness of international companies to expand U.S. exports and to be competitive in overseas markets.
So, the primary purpose of the L visa was to allow multinational companies to compete better in the global marketplace. First, it enabled foreign national employees “to advance within the worldwide organizations without regard to nationality.” This was important since otherwise U.S. businesses operating abroad would be unable to recruit top talent abroad. Second, it would allow the foreign national employees to “learn American management techniques by placing them in key positions in the United States and thus more effectively manage the affiliate operations” abroad. Third, such transfers would support “cross-fertilization of ideas through the use of special skills of personnel of different nationalities.”
Whether you are the employer or the employee, keep in mind the Congressional intent behind the L Visa when preparing your application.
II. Qualifications of the Employer
The sponsoring company must be doing business in at least one foreign country and must continue doing business after the employee comes to the US. So, if you are the owner of your own business and you want your own company to sponsor your visa, the foreign operations will need to have enough infrastructure to continue business activities in your absence.
“Doing business” means the regular and continuous provision of goods or services. The idea is that you have to have a real business. You cannot simply say you have a business because there is an office in the US and abroad.
If the foreign company is sending an executive or manager to establish a new office, the company must also show:
- it has secured adequate physical space to house the new office; and
- The U.S. office will generate enough business to support an executive or managerial position within one year of the approval of the petition.
III. Qualifications of the Employee
There are a couple of key considerations.
- worked for a company abroad for one continuous year within the three years immediately preceding admission to the US; and
- comes to the United States to work in an executive or managerial capacity for the same employer or one of its qualifying organizations.
So, first, the employee has to show he or she is genuinely an employee of the foreign company. That requirement is referred to as a “qualifying relationship.” The duration of employment is the key consideration, but other factors may also be relevant. The underlying concept, though, is simply that you really do work for the company. The examiners are on the lookout for employment relationships that have been fabricated for the purpose of getting the L visa.
Second, the employee has to be a manager, executive, or an employee with specialized knowledge. Sometimes, this requirement can be tricky, calling for skillful preparation of the petition.
If there is any grey area regarding your title or role with the company, you will definitely want to engage the services of an immigration attorney.
The following are helpful guidelines that cover some typical scenarios:
Executive – You would likely be considered an “executive” if you have the authority to make important decisions for the company without much oversight.
Manager – You would likely be considered a “manager” if you supervise professional employees and manage the company or, at least, some key aspect of the business. See s.101(a)(44) and 8 CFR 214.2(I)(1)(ii).
IV. Period of Stay
If you are coming to the US to establish a new office, you will be allowed a maximum initial stay of one (1) year. Other qualified employees are allowed a maximum stay of three (3) years.
You can request extensions of your stay until you reach the maximum limit of seven (7) years.
V. Family Members
The spouse and unmarried children of the employee (under 21 years of age) may accompany. Such family member will request an L-2 classification should be granted the same period of stay as the employee.
Spouses may apply for permission to work by filing Form I-765.
Be aware the L program is a nonimmigrant visa with a limit of seven (7) years. So, while the L-1 may get you through the door, it is not by itself a permanent solution. However, there is a path available for converting from an L-1 holder to a permanent resident.