L-1 Intra-company transfers

This L-1 non-immigrant visa is probably the head-ache Visa. I'm presently working on to change status (or employment) from L-1B to L-1A. Herein below are my observations.


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FILING A CHANGE OF STATUS FROM L-1B TO L-1A

The regulations(1) limit the availability of the full seven years of L-1A status of someone originally admitted in L-1B status to where a promotion occurs from a specialized knowledge occupation to a managerial occupation. Specifically, the regulations read:

L-1B employee must work for at least six months in a managerial or executive capacity

When an alien was initially admitted to the United States in a specialized knowledge capacity and is later promoted to a managerial or executive position, he or she must have been employed in the managerial or executive position for at least six months to be eligible for the total period of stay of seven years. The change to managerial or executive capacity must have been approved by USCIS in an amended, new, or extended petition at the time that the change occurred.

This provision caused some concern as there were denials in the past at some service centers because the adjudicators interpreted the regulation to require approval of an L-1A petition before four and one-half years of L-1B status had occurred. Additionally, the final sentence of the regulation made it appear that the practitioner must file two separate petitions--one to notify USCIS of the change in job duties, and another one six months later to be eligible for the total period of stay of seven years. AILA brought this to the attention of USCIS in its March 23, 2006, meeting and the response was as follows:(2)


The regulation requires that USCIS has "approved" the change to managerial position at the time of the change. This is in accordance with the independent regulatory requirement that the petitioner inform us of any changes in "capacity of employment." So not only must the alien have been in the new position for six months at the time of filing the extension from five to seven years, but USCIS must have approved that change when it happened. However, the centers should not deny an extension request simply because it was FILED during the final six months of the five-year stay. It can be filed the last day if need be, so long as the change occurred at least six months ago. The reason for requiring the extension at the end of six months is to establish the bonafides of the promotion. This is an important fraud deterrent--an appropriate indicator of the legitimacy of the managerial position. Therefore if the filings were to be combined after the beneficiary was in the promoted position would not meet the requirement that the beneficiary has been in the "position" for six months since the petition record would only reflect the original position. Therefore, with regard to a promotion at or during the last six months, premium processing would be the option.

Overall, before filing an petition to change L-1B to L-1A, confirm if the candidate has already worked in Manager or Executive position at least six months before filing the petition requesting the change, this might be waived if the candidate has already worked earlier when he was abroad. 
 
Here is an article by Lawrence D. Bastone of Zag S&W on L-1 Intracompany Transferree.

[1] See 8 CFR §214.2(l)(15)(ii) - An extension of stay may be authorized in increments of up to two years for beneficiaries of individual and blanket petitions. The total period of stay may not exceed five years for aliens employed in a specialized knowledge capacity. The total period of stay for an alien employed in a managerial or executive capacity may not exceed seven years. No further extensions may be granted. When an alien was initially admitted to the United States in a specialized knowledge capacity and is later promoted to a managerial or executive position, he or she must have been employed in the managerial or executive position for at least six months to be eligible for the total period of stay of seven years. The change to managerial or executive capacity must have been approved by the Service in an amended, new, or extended petition at the time that the change occurred.


[2] See AILA-USCIS Liaison Meeting Minutes (Mar. 23, 2006), published on AILA InfoNet at Doc. No. 06060761 (posted June 7, 2006).