Depending how the foreign employer company is structured or chooses to structure its U.S. company, certain of its employees may qualify for an L-1 Intra-Company Transferee Visa.
Multinational Executive or Manger of a Company
There are two “flavors” of the L-1 Visa. The L-1A and the L-1B. The L-1A for executive and managerial transferees and L-1B for employees with specialized knowledge. L-1A visas are issued initially for one year for a new company in the U.S. or three years for a U.S. company which has been in existence for more than one year. Extensions for L-1A beyond the initial period of stay are available in two-year increments for a total stay not to exceed seven years. Alternatively, L-1B visas are issued initially for three years with the option for one two-year extension, meaning the maximum period of stay is five years. Once an L-1A or L-1B holder has reached their maximum allowable period, they must leave the United States for a minimum of one year and must work for a foreign operation of the U.S. company before they are eligible to reapply for another L-1 visa.
By contrast, an E-1 or E-2 status holder is granted an initial period of stay of up to two years. Extensions of stay can be granted by the USCIS for increments of up to 2 years. There is no limit on how many times an E-2 visa holder can extend their stay, so theoretically they could legally remain in the U.S. on E-1 or E-2 status indefinitely. Extensions are granted as long as the E status holder declares that they will depart the United States when the period of authorized stay (including extensions) terminates.
The L-1 Visa is a convenient vehicle for transferring executives, managers, and specialized knowledge workers among affiliated companies. More than that, it is a good approach for those wishing to enter the U.S. on a permanent basis. First on a temporary basis and then permanent visa by applying for a permanent residency visa (Green Card) which is provided for in the regulations (unlike an E-2 Visa which has no such option). While the specifics follow, simplistically the key is having a business where you currently reside and having sufficient investment funds to either buy or start a business. In general, to qualify for an L-1 Visa, the petitioning company (the foreign “Company”) must show that:
- The Company and a U.S. entity have a qualified relationship. There are a number of ways to create the requisite relationship: The Company may (1) open a branch office in the U.S., (2) incorporate a subsidiary in the U.S., or (3) enter into a qualified joint venture in the U.S; the foreign Company must “control” the US company, which typically requires it owns at least 51% of the stock of the U.S. entity.
- Within the three years preceding the petition, the prospective transferee must have worked continuously for the parent foreign employer for atleast one year in either an executive, managerial or specialized knowledge employee capacity.
- The employee intends to enter the U.S. to work for the affiliated U.S. Company in either an executive, managerial or specialized knowledge capacity. This means that the person must manage or direct other employees within the company structure, or have specialized knowledge as an employee (L-1B), and the US Company must be ready to hire such employees on its payroll. Note that this last part (L-1B) can be difficult to prove and is subject to challenge by the USCIS.
- The U.S. entity (company) typically must employ at least 2 people and manager (who are allowed to work here).
- The employee is qualified to assume the executive, managerial or specialized knowledge capacity position in the U.S.
The foreign company must continue to conduct business while the transferee is in the US (at least until permanent residency is secured).
AUTHORIZED LENGTH OF STAY AND NEW OFFICE REQUIREMENTS
Executive or managerial transferee workers (and their designated immediate family members) may remain in the U.S. for a period not exceeding seven (7) years. Specialized knowledge employees for a maximum of 5 years. If the U.S. company is a “new” office (i.e. has not been active for more than one year), the initial L visa will be granted for 1 year. After this one year period, the petitioner must show that the company is actively doing business (i.e. showing growth in the number of employees, increase in revenues and increase in the volume of goods sold or services provided). If the U.S. Company is not a new office, then the initial period of stay will be 3 years. The office concept is a critical issue. See it from the USCIS perspective, how can you be in business if you don’t have a place to work from, phone and have people manning the phones. What one might call the sniff test, if it looks like a fish, smells like a fish then it is a fish.
OTHER RELATED REQUIREMENTS AND ISSUES
The USCIS will require you to file a business plan as part of your application. While they understand that business is dynamic and things change they will measure you against this plan. Interestingly, for an L-1 visa the U.S. business does not have to be in the same field as the parent company (Foreign Company). Also, while not explicitly stated there is a need for a financial investment. While similar to an E-2, it must be sufficient to meet the capital requirements as laid out in your business plan (there is no minimum amount of capital investment required by law). Typically this means $100,000 or more. Note as the investment grows towards $500,000 serious consideration should be given to an EB-5 visa either individual EB-5 (you want to operate the business) or regional center EB-5 (passive investment), as this Visa program directly leads to a Permanent Residency Visa (Green Card).
As part of the process, you will be asked to help the USCIS verify the existence of parent company and that you own the business and your employee has worked for that company. You will need to prove that the L-1 applicant 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 the proposed employment involves executive or managerial authority over the new operation. Aggregation of several shorter periods is not allowed to make up one year. However, this individual can be directly employed, or paid through an agency or personal service company, or even on a freelance basis, as long as there is management and control over the worker during the qualifying year.
BENEFIT OF AN L-1 – CONVERTION TO PERMANENT RESIDENCY
It needs to remembered that the L-1 visa is a temporary visa (up to 7 years). Thus the L-1 visas ability to be convert to permanent U.S. residence (more commonly known as the “green card”) is potentially a very important aspect. Permanent U.S. residency enables foreign nationals to (1) reside, work, and study in the U.S. without limitation, and (2) enter the U.S. without advance permission or predetermined time limits. The requirements for qualified L-1 managers or executives to apply for the green card are essentially the same as for the L-1 visa. Typically, however, we recommend that between 1-2 years minimum elapse on the L-1 visa so the U.S. entity can establish a record of sales/services and growth to maximize the chances of approval of the green card petition. As such, at least one L-1 visa renewal will be needed.
SPOUSE AND CHILDREN OF BENEFICIARY EMPLOYEE
As noted above, the spouse and children under the age of 21 years may accompany the L-1 visa holder employee to the U.S. under the L-2 visa category. Although the L-2 is a separate visa category, it is used only for the family member of a L-1 visa holder. As dependents of the L-1 visa holder, the spouse may obtain work authorization once in the U.S. and children can remain in the U.S. legally and study.
L-1A vs. L-1B Visa Requirements
L-1A: Managers and Executives
Assuming the applicant is coming to the U.S. as a manager or executive to open or to be employed in a new office in the U.S., the petitioner must submit the following evidence:
- Sufficient physical premises to house the new office have been secured (this can be, at least initially, anexecutive office suite);
- The business entity in the U.S. is or will be a qualifying organization; and
- The petitioner has the financial ability to remunerate the beneficiary and to commence doing business in the U.S.
The knowledge should be advanced, unusual within the industry and should be specific to the employer’s business. This implies that the foreign national’s specialized knowledge actually has been valuable to the company in terms of improving its productivity, competitiveness, image, or financial position.
WHICH IS RIGHT FOR ME?
The ultimate decision will be based on facts and circumstance that relate to you specifically and discussions with your immigration attorney. Which do you qualify for? What is your long-term goal? While E-2 Visas are generally easy to obtain, you need to be a citizen of a treaty nation e.g. Great Britain. However, many people have dual citizenship. This is very common in such countries as South Africa. However, there can be some nuances that might cause you a problem. For example, you must have a residence in that treaty country and have income that is derived from there. While L-1 Visas give you a process to convert to a Permanent Residency Visa (Green Card), this is a separate process from obtaining an L-1 Visa. Most importantly, you have to have an existing operating business in the country from which you are coming; and it can not have been started yesterday. You need to have it operate for at least one to two years after you are here, long enough to have a Green Card approved. With an E-2 Visa although there is no direct path for a Green Card, you can continue to renew your visa indefinitely and you can apply for one after some period of time – 2 plus years.
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