L-1 Visas - Intracompany Transferee
The L-1 “intracompany transferee” Visa is available to a foreign national who is being transferred from an employer outside the US, to a related employer in the US. This Visa specifically applies only to those in executive, managerial or specialized knowledge positions. In order to qualify, the company must sponsor a foreign national who has worked for a related company outside the US for at least 1 year in the last 3 years, prior to coming to the US. Moreover, a clear parent, subsidiary or affiliate relationship between the foreign and US companies must be established. There are two types of L-1 Visas, each with its own qualifying factors and validity dates. L-1 Visas do have maximum validity periods, and once that limit is reached, no more extensions are available. To “reset” a foreign national’s ability to come to the US on an L-1, he/she must leave the US for one full year. Under some circumstances, if the foreign national is sponsored for an Immigrant Visa (“green card”) then the employee can remain in the US. Foreign nationals may seek US green card status while on an L-1 Visa. As described below, most L-1 Visas, the application must first be approved by a US Citizenship and Immigration Services (USCIS) Regional Service Center, before the employee can then apply for a visa at a US Consulate, and then enter the US to work. However, see the application process for Canadian Citizens and/or Blanket L-1s below.
A foreign national employee who will be transferred to the US in an executive or managerial capacity may obtain an L-1A Visa. It is initially issued for a 3 year period, and may be extended up to a total of 7 years. An intracompany manager/executive has greater options for green card processing, as long as he/she has 1 year of executive/managerial experience with the company abroad prior to coming to the US. Generally, the L-1A manager will need to manage professional subordinate employees, but “functional manager” cases can also be approved. Time spent out of the US while on an L-1A, can be added to the time an L-1A employee can work in the US (referred to as recapture). For more information regarding green cards, see the Clark Hill website.
L-1B Specialized Knowledge
A foreign national employee who will be transferred to the US to fill a role which requires specialized knowledge of the organization’s products, services, research, equipment, proprietary processes or other functions, and has gained the specialized knowledge outside the US with a related company, may obtain an L-1B Visa. The L-1B Visa may be granted for an initial 3 year period and extended up to a total of 5 years. The specialized knowledge must be uncommon to the organization and cannot include skills that may be easily acquired by an entry-level US-based employee. Time spent out of the US while on an L-1B, can be added to the time an L-1B employee can work in the US (referred to as recapture). L-1B applications have experienced extensive additional scrutiny in the past few years by USCIS. As a result, both new L-1B applications, and extensions, may not necessarily be approved, even for situations which clearly fit this test. The green card process for L-1B workers usually requires PERM Labor Certification, and for more information see the Clark Hill website.
L-1B Offsite Employment
Effective June 6, 2005, new petitions and extensions for L-1B status prohibit L-1B’s from being assigned to a worksite other than one for their petitioning employer, if the work is controlled and supervised by that different employer. Also, L-1B’s cannot be assigned off site to provide labor for hire, and must be providing the specialized knowledge for the petitioning employer. The USCIS has issued a memorandum regarding this provision on their website.
Filing L-1 Petitions
Most L-1 Visa petitions are filed through the USCIS Regional Service Center. The USCIS may take several months to process an L-1. However, for an additional $1,225 processing fee, the USCIS will adjudicate the petition in 15 days. Once approved, a foreign national can then apply for a Visa at a US Consulate. Note that Canadian citizens do not need to apply at a US Consulate, and can process directly at a post-of-entry, or apply through the normal process and take the approval to a US/Canada port of entry.
“New Office” L-1 Petitions
Companies that decide to set up a new US company would need to file a “new office” L-1 petition with USCIS, for any L-1 workers (L-1A or L-1B) who need to come to the US during the US entity’s first year of operation. Extensive information is needed to prove that a US company has been set up to qualify for the initial new office L-1. Approvals are given for only 1 year. To apply for time beyond the additional 1 year period, extensive information must be provided to prove that the company is in existence and an ongoing entity. To be exempt from this new office L-1, the US company must be operational for more than 1 year, and not just incorporated for over 1 year. In addition, companies that purchase an appropriate stake in an existing US company, which itself had been in existence for over 1 year, do not have to file a new office L-1. In this scenario, their employees can apply for L-1s as soon as the purchase is complete.
Blanket L-1 Petitions
Companies that qualify for and receive Blanket L-1 Petitions see significantly reduced processing times, as the L-1 employees can apply directly at a US Consulate for a visa (or port of entry for Canadian citizens), without waiting for USCIS pre-approval in the US. This reduces processing times, filing fees, and Blanket L-1s are generally under less of the recent increased scrutiny than are regular L-1 applications. Blanket L-1 approvals for the company are issued for 3 years, with extensions granted on an indefinite basis. Changes in ownership and changes in subsidiaries require a Blanket amendment filing to USCIS. If the Blanket L-1 is not used for 3 years, the authorization can be cancelled. To qualify for Blanket L-1 authorization a company must be in existence for at least 1 year in the US, have 3 or more US and global subsidiaries combined, be an ongoing business, and meet 1 of the following 3 criteria: US sales over $25 million; US employees over 1,000, or have transferred 10 or more L-1s to the US in the past year.
Indefinite L-1 Extensions
US immigration regulations permit extensions of L-1 status beyond the 7 or 5 year limits listed above, if the employee works in the US on a seasonal or intermittent basis, or if the employee spends less than 6 months in the US per year. Immigration officers require a much higher level of proof for indefinite L-1 extensions, than they do for recapturing time spent outside the US.
The L-2 Visa is available to immediate family members (spouses and children under the age of 21) who accompany the L-1 employee to the US. The L-2 Visa is generally granted for the same period as the L-1 Visa holder, and must be extended accordingly. An L-2 spouse (not children) may apply for US employment authorization when he/she arrives in the US, and can work for any employer in any field. Time spent in the US on an L-2 does not count against that foreign national’s 6 year limit on an H-1B, as described in the H-1B web page, if he/she obtains an H-1B. L-2 Visa holders can apply for US social security numbers without first applying for work authorization. However, L-2 Visa holders should secure work authorization before working in the US.