4.1 The L Visa facilitates the temporary transfer of key employees of multinational companies to the U.S. Individuals, previously employed for a minimum of one year outside the U.S. as executives, managers, or in positions requiring specialized knowledge and who will continue to work in the U.S. in those capacities for the same employer or a qualifying U.S. subsidiary, branch, parent, affiliate or joint venture are eligible for L-1 nonimmigrant visa status.
4.2 While L visas are very flexible, there are a number of specific criteria that may not be avoided, as follows:
L-1 visas are employer-specific – one may not change employers or begin working for a different company until a change in employment is approved;
changes in job location, duties and wages are sensitive – some may require a new petition;
change in company status or reorganization, such as an acquisition by another company, for example, may affect the status of the visa holder.
4.3 The maximum period of stay for L-1 visa holders may not exceed seven years for executives and managers and five years for individuals with specialized knowledge. There are separate rules for specialized knowledge workers who have been promoted to a managerial/executive position after arriving in the U.S. and for individuals who have held H-1B status for periods contiguous with the L-1 stay. These rules, however do not serve to extend the employee’s stay beyond the appropriate 5, 6, or 7 year limit but, rather, provide guidance as to which limit applies.
Executive Capacity
4.4 Executive capacity requires proof that the alien primarily:
directs the management, a major component or major function of the organization;
establishes goals or policies of the organization / component / function;
exercises wide latitude in discretionary decision making; and
operates only under general supervision or direction from higher level executives, the board of directors, or stockholders of the organization.
Note:
a) Those who provide the goods and/or services of the organization are generally excluded notwithstanding the fact that they may also additionally perform managerial or executive tasks.
b) The U.S. Citizenship and Immigration Services (USCIS: formerly known as “INS,” the Immigration and Naturalization Service) has repeatedly maintained that, for a managerial or executive capacity petition to be approved, the requirements must be read in conjunction not disjunction (that is all four factors must be present and proved, not a lesser combination of them.)
Managerial Capacity
4.5 Managerial capacity requires proof that the alien primarily:
manages the organization, a department, a subdivision, a function or a component of the organization;
supervises and controls supervisors managerial employees, or professionals, or manages an essential function within the organization;
exercises meaningful personnel action authority over those supervised, and if no other employee is directly supervised, functions at a senior level within the organizational hierarchy or with respect to the function managed; and
has discretionary authority over day-to-day operations of the activity or function. First-level supervisors are considered managers only if they primarily supervise professional employees, those who hold a university degree in a specific field and are performing at the level of a degree holder in that field.
Specialized Knowledge Capacity
4.6 Specialized Knowledge capacity requires that the alien possess:
knowledge of the organization's products or services or research, equipment, techniques, management or other interests, and their application in the international market, and/or
possess an "advanced level of knowledge or expertise" of processes and procedures of the organization.
If pursuing a specialized knowledge L-1B position through a Blanket L approval, the alien must be a professional, which requires a minimum of a Bachelor’s degree.
Application Process
4.7 The petitioner begins the L-1 process by filing Forms I-129 and I-129L, along with appropriate fees and documents proving the necessary petition elements we have described, with the Director of the USCIS Regional Service Center having jurisdiction over the area of intended employment. Even in emergencies, the Regional Center, not the local USCIS District Office, has exclusive jurisdiction over the petition.
4.8 The petition, to be approved, must simultaneously establish the petitioner as a qualifying organization and that the particular alien named in the petition should be qualified as an Intracompany Transferee. With the approval notice described below, the named alien may apply for a visa and for entry into the U.S. If the worker is already in the U.S., the USCIS will change the worker's status in accord with the petition.
4.9 A Notice of Action/Approval (Form I-797) is sent to the employer once the petition (and change of status, if appropriate) is approved.
Note: Amended petitions "shall" be filed with the USCIS office having jurisdiction over the job location to reflect changes in approved relationships, and/or any other fact that affects the alien's L-1 eligibility or employment. This includes job changes such as where the alien is promoted from a specialized knowledge position to a managerial position.
Initial Admission to the U.S. and Extensions of Stay
4.10 L-1 status for executives and managers is limited to a maximum period of not more than seven years. L-l status based on specialized knowledge is limited to five years.
4.11 Initial approval of an individual petition may be granted for a period not to exceed three (3) years. The actual duration is determined by the length of time requested by the employer in its petition. Visa validity and subsequent admissions of the alien are each limited to the period of validity of the petition.
4.12 We have observed that it is not uncommon for a USCIS Inspector at the port of entry to admit an L-l applicant for less than the full period of the approved petition. This may result when a passport will expire sooner than six months after the petition's remaining duration. Reciprocal agreements regarding passport validity, between the U.S. and the alien's country of citizenship, can govern that decision.
4.13 If through clear, convincing proof in the form of arrival and departure records, tax records and employment records, an L-1 beneficiary can establish that s/he does not reside continuously in the U.S., and that his/her employment in the U.S. is seasonal, intermittent, or an aggregate of six months or less per year, or that the alien resides abroad and regularly commutes to the U.S. to engage in only part-time employment, the five year or seven year limitation on continuous L-1 status does not apply.
4.14 Extension of an individual petition may be granted in increments not to exceed two years, and need not be accompanied by supporting documents unless either expressly requested by the USCIS or when needed to document a change in the worker's employment situation.
Petition extension may only be sought if:
the validity of the original petition has not yet expired;
the petitioner is simultaneously requesting an extension of the alien beneficiary's stay on the same form (although the two determinations, one on the petition and the other on the extension of the alien's stay, are, at least technically, adjudicated separately); and
the alien beneficiary is physically present in the US.
4.15 If the alien, during the pendency of his extension request, must leave the U.S. for business or personal reasons, traveling abroad will no longer affect the processing of his extension as long as the extension request was properly and timely filed before the worker's stay expired. Despite an intervening international travel while the extension petition is pending, U.S. Immigration will adjudicate the petition and provide an extension on the I-94 card.
By contrast, in the event the alien has filed a petition to change his nonimmigrant visa status (from one nonimmigrant visa category to another nonimmigrant visa category), traveling abroad will affect the processing of the petition to change his nonimmigrant status. By leaving the U.S., the alien beneficiary is held to have abandoned his request for change of status, and such request for change of status will automatically be denied. This means that the alien beneficiary will not be given a new I-94 card granting him/her the new non immigrant visa category. Please note that traveling abroad and the subsequent denial of the change of status petition for certain visa categories (H, L, O, P, Q) will not affect the processing of the underlying petition for a particular nonimmigrant visa category. This means that U.S. Immigration will not issue a new I-94 card. As a result, the alien beneficiary will be required to travel to a U.S. Embassy or Consulate abroad to avail himself of the new nonimmigrant visa prior to the expiration of the prior nonimmigrant status in order to remain in valid visa status and reenter the U.S. in valid status.
Readmission as an L-1 Transferee after reaching maximum stay
4.16 Before an alien who has been in the U.S. as an L-1 for a period of five (or seven) continuous years, may be eligible for re-admission to the U.S. again in L-1 status (thus restarting the entire period of eligibility), the alien must have been physically out of the U.S. for at least one full year. Temporary visits to the U.S. extend this requirement. So, one who is abroad for eleven months, and who enters as a visitor for a month, must still remain abroad for an additional month. The law does not otherwise specify the country or location where the year may be spent.
Opening a New Office
4.17 A "New Office" is an organization doing business in the U.S. through a parent, branch, subsidiary, or affiliate for less than one year.
4.18 When a "manager" or an "executive" employee comes to open or to be employed in a new office, the petitioner must submit evidence that:
it has secured sufficient physical premises to house the new office;
the beneficiary was employed abroad for one out of the three years immediately preceding his application for admission in a managerial or executive capacity position;
the proposed employment involves managerial or executive authority over the new operation; and
the intended U.S. operation will support, within 1 year of the petition's approval, an executive or managerial position.
4.19 A "specialized knowledge" employee may also come to open or to be employed in a new office. Then, the petitioner must submit evidence that:
sufficient physical premises to house the new office have been secured;
the beneficiary was employed abroad for one out of the three years immediately preceding his application for admission, in a managerial or executive capacity position, or one that involved specialized knowledge;
the business entity in the U.S. is a "qualifying organization"; and
the foreign entity has the financial ability to pay the beneficiary and commence doing business in the U.S.
4.20 Initial approval of a petition for a "New Office" may be granted for a period not to exceed one year.
4.21 Extension of a new office's petition may be granted in increments not to exceed two years. The extension petition must be accompanied by evidence that the organizations in the U.S. and abroad still qualify to petition on the basis of their relationship to one another and that the U.S. entity has been "doing business," i.e., providing its goods and services in the U.S. The petition for extension must be accompanied by evidence describing the duties performed by the alien during the previous year, as well as those he/she will perform during the requested period of extension; and evidence of the U.S. organization's staffing and past payroll (especially when the alien will be employed in a managerial or executive capacity). Finally, the extension petition must include evidence of the financial status of the U.S. operation, to assure that the enterprise is, indeed, viable.
Employment Abroad
4.22 The requirement that the worker be employed ... abroad... continuously for one year ... within the immediately preceding three years, as elements of threshold L-1 eligibility, occasionally raises difficulties:
"employment" for example, seems to preclude the independent contractor who does consulting (for a fee rather than a salary) for the qualifying organization abroad, and may be held to exclude an employee whose work was on less than a "full time" basis. The key issue is the degree of management, supervision and control over the worker's activities that existed under the employer/employee relationship;
"abroad" means, literally, that the L-1 alien has been physically employed outside of the U.S. during the requisite one continuous year, and brief periods of intervening lawful presence in the U.S. for business on behalf of the qualifying organization (e.g. B-1 entries) or visits for pleasure (e.g. B-2 entries), while not interruptive of the one year continuous employment abroad, are counted against fulfilling that requirement. The alien must remain abroad long enough to accumulate an aggregate total of one year physical presence abroad while employed;
"continuous" employment abroad suggests that any interruption of employment which breaks the employer/employee relationship would restart the qualifying period from the date when the employment began anew, rather than when it originally began. In other words, an alien cannot "link" separate periods of employment of less than a year even if together they would equal or exceed a year of employment. Occasional vacations leave time, or outside training, would likely not toll the qualifying period; and
"within the immediately preceding three years" essentially means that the requisite one year of pre-eligibility employment must have occurred within a thirty-six month period measured backward from the time the intending L-1 alien makes "application for admission into the U.S.," not from when the L-1 petition is received by USCIS for adjudication or when the alien applies for the L-1 visa at the U.S. consulate.
Note: Interesting fact patterns with differing results have arisen when the alien’s employment abroad was succeeded by an intervening lengthy period of lawful or even unlawful presence in the U.S. Space does not permit an exhaustive treatment of the many possible situations, and where a question arises, careful analysis should take place. All eligibility prerequisites should be met before the petitioner files the visa petition. While USCIS will accept an early filing, seeking adjudication of a petition to begin up to 6 months in the future, as a practical matter, the one-year-employment-within-the -preceding-three-year should be conservatively measured from the date of filing rather than intended entry (admission) to the U.S. That will serve to materially simplify the adjudication process.
Blanket L Petitions
4.23 A "Blanket L Petition" is used to establish a petitioner as a qualifying organization in advance of sending any particular alien to a post in the United States. It permits, at some unspecified time in the future, the assignment of a qualified worker to a post in the U.S. using the pre-approved Blanket Petition as a basis upon which to apply directly for a visa and/or entry into the U.S. The worker must be coming to be employed at one or more of the Company's entities named in the approved Blanket Petition as a manager, executive or specialized knowledge professional. A Blanket petition is adjudicated by the Regional Service Center having jurisdiction over the locality where the petitioner is located.
4.24 Requirements for a Blanket L petition are:
petitioner and included qualifying organizations are engaged in commercial trade or services;
petitioner has been doing business in the U.S. for more than one year, through a U.S. branch, subsidiary or affiliate; and
petitioner and included qualifying organizations have had at least ten L petitions approved for managers, executives or specialized knowledge professional during the previous 12 months; or
petitioner, U.S. affiliates or subsidiaries have combined annual sales of at least $25 million; or
petitioner's U.S. workforce numbers at least 1,000 employees.
4.25 Initial approval of a Blanket L Petition may be granted for a period of three years.
4.26 The initial admission of an alien under a "new" Blanket L Visa Petition may be permitted for a period up to, but not more than, three years, even though the initial approval of the Blanket L Visa Petition is less than three years.
Note: Once a Blanket L Visa Petition is approved, the L-1 visa issuance process commences when the petitioner provides to the prospective L-1 alien two copies (keeping a third copy for itself) of Form 1-129S, Certificate of Eligibility for Intracompany Transferee under a Blanket Petition, together with two copies of Form 1-797 Notice of Approval of the original Blanket Petition. The alien then presents these to the U.S. consul abroad who has the authority to determine (as USCIS does in individual petition cases) whether the alien is, in fact, eligible to be classified as an Intracompany Transferee (e.g., is a manager, executive, or one who possesses specialized knowledge, namely a professional position requiring a minimum of a Bachelor’s degree.) If the visa is issued, the alien proceeds to the U.S. and enters in the normal manner. Often the evidentiary document that will have the most significance, one that accompanied the Blanket L-1 Petition, is an organizational chart that contains a clearly defined line delineating the managerial and/or executive positions in the organization. Those below the line require individual petitions; those above the line are usually deemed to be qualified under the Blanket L Petition rules. L-1 aliens admitted under a Blanket L Petition may work at any entity within the qualifying organization provided the entity was listed on the approved Blanket L Petition, and the “alien will be performing virtually the same job duties.”
NOTE: All new Blanket L Visa Petitions under the Blanket L Visa Petition program filed on or after June 6, 2005 require the applicants to have worked for a period of no less than one year outside the U.S. for an employer with a qualifying relationship to the petitioning employer. Previously, applicants in the “Blanket L-1 Visa” program could participate after as little as 6 months of qualifying employment.
4.27 Extension of a Blanket L Petition to the petitioning employer may be granted INDEFINITELY.
Note: Failure to make a timely request for an indefinite extension will require that a new 3-year approval again be obtained before an indefinite blanket L-1 approval can be sought. Please note that this does not mean that employees will be granted indefinite lengths of stay under the L visa. The L visas for employees will still be limited to five or seven years.
Please note that a new version of Form I-129S came out on 4/4/2003.Nonimmigrant Intent
4.28 Nonimmigrant intent is no longer a major factor in a consular decision to issue an L-1 visa, or in a USCIS decision to grant either admission or extension of stay. The presumption of immigrant intent, that otherwise applies to all nonimmigrant applicants for admission, does not apply to the L-1 alien. The immigration laws state:
"The approval of a permanent labor certification or the filing of a preference petition for an alien shall not be the basis for denying an L petition, a request to extend an L petition, the alien's application for admission, change of status, extension of stay. The alien may legitimately come to the U.S. as a nonimmigrant under the L classification and depart voluntarily at the end of his or her authorized stay, and at the same time, lawfully seek to become a permanent resident of the U.S."
Automatic Revocation of Blanket Petition
4.29 If a petitioner withdraws a Blanket L petition or if the petitioner fails to extend a Blanket L Petition, it is revoked automatically. Automatic revocation may not be appealed.
Notice of Revocation
4.30 This may occur if the Director finds that:
one or more entities named in the petition are no longer qualifying organizations;
an alien admitted under the petition is no longer eligible under immigration law;
the qualifying organization violated requirements of the relevant statute or regulations;
the statement of facts in the petition was not true or correct;
approval of the petition involved gross error; or
no qualifying organization has used the Blanket L Petition for three years.
L-2 Spouses / Minor, Unmarried Children
4.31 In general, holders of L-2 Visas do not receive automatic employment authorization and derive their status solely from the principal L-1 worker. However, recent changes in USCIS regulations now allow spouses of L-1 workers who hold L-2 status to obtain employment authorization for up to two years (renewable if maintaining valid status) by applying to the appropriate regional service center on Form I-765. This change went into effect in January of 2002. More recent rules issued by the Social Security Administration now allow spouses of L-1 workers to apply for a social security number prior to obtaining work authorization.
4.32 L-2 children lose their status at age 21, or upon marriage if prior to age 21. While authorized to study, L-2 dependent children must convert their status to that of an F-1 student if the individual wishes to participate in Practical Training or any other proper student employment.
Definitions
4.33 The following definitions and further explanatory notes may also be helpful:
"Petitioner" is the entity within an organization that seeks to employ the alien in the United States.
"Beneficiary" is the alien to be employed.
Note: As suggested earlier, employment is difficult to define. It does not refer solely to the source of one‘s paycheck. Rather, for immigration purposes, an employer is the entity that directs and controls the employee’s activities and how his/her tasks are to be performed. Payroll considerations may or may not evidence that control.
The sending employer (abroad) and the receiving employer (the petitioner in the U.S.) must be related in one of several specific ways: they must be the same employer (viz. a branch office) or one must be the other's "Parent," "affiliate," or "subsidiary".
Note: For one of these relationships to exist, the element of "control" (usually through majority ownership, but alternatively through veto power) must be present in the links of the chain which connects the two entities.
"parent" means a firm, corporation or other legal entity which has subsidiaries;
"branch" means an operating division or office of the same organization housed in a different location;
"subsidiary" means a firm, corporation, or other legal entity of which a parent owns, directly or indirectly, at least 50% of the entity and positively or negatively controls the entity, or owns 50% of a 50-50 joint venture, holding equal control and veto power over the entity; or owns less than half of the entity but in fact controls the entity.
Note: in most cases a franchise agreement, a management contract, or licensing provisions do not establish the necessary relationship because the requisite ownership is absent.
"affiliate" means one of two subsidiaries both of which are owned and controlled by the same parent or individual, or that are owned and controlled by the same group of individuals, each individual owning and controlling approximately (usually interpreted as "exactly") the same share or proportion of each entity. Affiliate also includes: certain international accounting firms, organized as partnerships in the U.S. to provide accounting (along with managerial and/or consulting) services.
Note: It must be shown, however, that such firms market their accounting services under the same internationally recognized names pursuant to an agreement with a world-wide coordinating organization owned and controlled by the member accounting firms and that the sending employer (abroad) and receiving employer (in the U.S.) are both members of the world-wide organization.
A "Qualifying Organization," in addition to being a U.S. or foreign firm, corporation or other legal entity which meets exactly one of the qualifying relationships (e.g. partner, branch, subsidiary, or affiliate), must continue to be "doing business as an employer in the U.S. and in at least one other country" during an Intracompany Transferee's stay in the U.S.
"Doing Business" means "the regular, systematic, and continuous provision of goods and/or services by a qualifying organization which has employees." It does not include the mere presence of an agent or office of the qualifying organization in the U.S. or abroad.
L-1 VISA REFORM ACT OF 2004 – Aspects of the New Law Changes for the Temporary Work Program
On December 8, 2004, USCIS announced that President Bush has signed the Omnibus Appropriations Act for FY 2005, which contains the L-1 Visa Reform Act of 2004. An L-1B nonimmigrant is an alien who has been employed overseas by a firm with an affiliated entity in the U.S., who comes to the U.S. to perform services for the international entity that involve specialized knowledge.
The L-1 Reform Act amends previous legislation by addressing the issue of “outsourcing.” L-1B temporary workers can no longer work primarily at a worksite other than their petitioning employer if the work will be controlled and supervised by a different employer or if the offsite arrangement is essentially to provide labor for hire, rather than service related to the specialized knowledge of the petitioning employer. This limitation will apply to all L-1B petitions filed with USCIS on or after June 6, 2005. This includes extensions and amendments involving individuals currently in L-1 status.
The Act also requires that all L-1 temporary workers must have worked for a period of no less than one year within the last 3 years outside the United States for an employer with a qualifying relationship to the petitioning employer. Previously, participants in the “blanket L-1” program could participate after as little as six months of qualifying employment. This change applies to petitions for initial L-1 classification filed with USCIS on or after June 6, 2005. As mentioned in previous chapters, the Act also creates a new Fraud Prevention and Detection Fee of $500 which must be paid by petitioners seeking a beneficiary’s initial grant of H-1B or L nonimmigrant classification or those petitions seeking to change a beneficiary’s employer within those classifications. Other than petitions to amend or extend stay filed by an existing H-1B or L employer, there are no exemptions from the $500 fee. Once again, the new $500 fee applies to petitions filed with USCIS on or after March 8, 2005.
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