L-1 Visas
L-1 Visa
L-1 The L-1 Visa is an important visa category to consider in evaluating the correct visa strategy for a foreign worker. L-1 visas were created to accomodate the needs of multinational companies and assist them in transferring executives, managers, or special knowledge workers in and out of the United States. The requirements for an L-1 visa are relatively straightforward:
THE REQUIREMENTS FOR AN L-1 VISA ARE RELATIVELY STRAIGHTFORWARD:
A) L-1 Qualifying Relationship. In order to obtain issuance of a L-1 Visa, there must be a Qualifying Relationship between the business entity in the United States and the foreign operation which employs the alien abroad. In the L-1 Visa context, “qualifying capacity” means in practice that the L-1 Visa Petitioner (normally, the U.S. employer must) have a parent, branch, subsidiary or office in a foreign country.
Additionally, for the duration of the L-1 Visa holder stay in the United States, the petitioner must continue to do business both in the United States and in at least one other country, either directly or through a parent, branch, subsidiary, or affiliate. This preclude issuance of L-1 Visas to small businesses and professionals who intend to “fold down” their foreign operations and transfer to the United States upon issuance of the visa.
B) L-1 Qualifying Employment. The L-1A Visa Manager or Executive or the L-1B Visa Specialized Knowledge Employee for whom the visa is requested must have worked for the L-1 foreign entity abroad for at least one year in the past three years. This is very important and both at the time of the original L-1 Visa Petition and any subsequent renewals, payroll records are often requested by USCIS to substantiate the existence of the required prior employment history.
Additionally, to qualify for L-1 status, such one year of employment outside the U.S. must have been “continuous”. Although authorized periods of stay in the United States for the foreign employer are not interruptive of the prior year of employment, such periods may not be counted towards the qualifying year of employment abroad
C) L-1 Qualifying Capacity. The transfer must be requested to allow the L-1 worker to perform managerial, executive, or specialized knowledge work in the United States for the L-1 Visa Petitioner , and the L-1 Visa Beneficiary must have been employed abroad by the foreign operation in a L-1 Managerial, Executive, or Specialized Knowledge capacity.
However, the alien does not have to be transferred to the United States in the same capacity in which he or she was employed abroad. For example, a manager abroad could be transferred to the United States as an L-1B Visa in a specialized knowledge capacity or, vice versa, an L-1A Manager or Executive can transfer after having mature a prior year of employment abroad as a specialized knowledge worker. See Matter of Vaillancourt.
D) L-1 Visa Duration. L-1 visas can be granted in increments up to a total of seven years for L-1A Managers and Executives and five years for L-1B Specialized Knowledge workers.
E) L-2 Visas. The spouse and dependents of the L-1 visa holder can follow the principal alien and will be issued an L-2 visa and, in a relatively recent development, L-2 spouses have been given the option to request employment authorization while in the USA.
WHILE SIMPLE ON THE SURFACE, A MULTIPLICITY OF INTERPRETATION PROBLEMS LURKS BEHIND EACH OF THE SIMPLE TERMS LISTED ABOVE. What is executive capacity? Does managing first line supervisors qualify as managerial capacity for L-1 visa purposes? does the L-1 visa recognize the so-called “Function Manager”, i.e. an individual who manages a Function rather than managing subordinate staff? What is “specialized knowledge” in the L-1 visa context?
We see a fair number of L-1 Visa petition who prior to come to us have been filed incorrectly, lacking an understanding of how USCIS currently interprets the L-1 Visa requirements. Various memorandums have been flying around for years trying to come up with a definition of “specialized knowledge” for L-1 Visa purposes, but the interpretation can be nebulous or difficult to pin down to the circumstances of a particular case.
Similarly, the concept of the L-1 visa “function manager” has been recognized by USCIS for years but petitions have been often denied, much to the surprise of the L-1 Visa Beneficiary, when the L-1 function manger performs the function rather than simply managing it with subordinates or sometimes, with outside contractors.
Overall, the L-1 Visa category was thought for big multinational companies and sometimes does not adapt very well to the reality of modern business. The services of an experienced L-1 Visa lawyer can be extremely useful to spot potential pitfall in advance and to minimize the chance of a denial of the L-1 visa petition.
SOMETIMES, L-1 visa and H1-B visas requirements can be coextensive and a particular candidate may qualify for more than one visa. This situation needs to be evaluated carefully. Since the number of years of maximum authorized stay, employment authorization options for spouses, and the possibility of obtaining an extension beyond the maximum period of stay vary depending on the visa classification, it is important to examine these issues in depth to establish the immigration strategy that best fit the client’s needs.
For the same reasons sometimes it may be worth it to consider a change of visa status while the employee is employed in the US in L-1 or H1-B or E-2 capacity. All these immigration issues are best addressed as soon as possible in the employment relationship and not left to rotten and arises as an afterthought when the immediate problem arise. It pays off to develop an ongoing, continuous relationship with a skilled immigration lawyer that can not only respond to the last minutes emergencies of your business but can guide you through the maze of immigration laws and regulations.
Giuseppe Scagliarini is a U.S. based Immigration Lawyer with Offices in Newport, RI, speaking Italian and English and with decades of experience assisting individuals and companies in obtaining all types of Visas for the United States, including L-1 visas (both L-1A Visas and L-1B Visas). We have assisted many clients from multinational companies to small enterprises obtaining L-1 visas to transfer their personnel. We offer a personalized experience, a friendly working relationship, proven experience as our many past clients attest.
If you are considering applying for an L-1 Visas on behalf of a foreign employee, and if you think that your company meets the requirements for issuance of an L-1 visa, please do not hesitate to contact us.