Overview of L-1 Visa Category
Posted
Mar 08, 2002; updated Aug 24, 2002
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For readers of the MurthyBulletin and MurthyDotCom, we
periodically provide an overview of one of the nonimmigrant categories. This
week we present the L-1 visa category.
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As some of our readers may be aware, there are two possible procedures for
obtaining L-1 status. These are the individual and the "blanket"
petitions, both filed with the USCIS. We will discuss the individual L-1 process
and address the blanket L-1 process in a later Bulletin edition.
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General Definition and Requirements
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The L-1 visa category is
for an “intra-company transferee.” An "intra-company transferee is
an employee of a company abroad who is to be transferred to a U.S.
affiliate, parent, or subsidiary entity on a temporary work basis. In order
to be eligible, the employee must have worked for the company abroad for one
continuous year out of the preceding three years. The employee must be
coming to the U.S. in order to continue working for the same employer or the
affiliate, subsidiary, or parent company.
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Qualifying Employment Position
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To be eligible for the L-1
category, the employee must be offered a position in the U.S. as either a
"Manager," "Executive" (referred to as an L1A), or a
person with "Specialized Knowledge" (referred to as an L1B). These
defined terms are discussed in greater detail below. Demonstrating that the
offered, U.S. position and the prior, foreign position fit within these
categories is vital to the success of the L-1 petition.
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It is not necessary for the employee to have held the same position abroad
as the intended job in the U.S., as long as s/he held the job either as a
manager, executive, or worked with specialized knowledge. For example, a
person who was in a specialized knowledge position abroad could be offered a
position in the U.S. as an executive under the L-1 category. However, one
who worked in a routine, clerical position could not qualify, even if
offered a position within one of the above categories.
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An L1B worker in the specialized knowledge category can only remain up to 5
years in the U.S. as opposed to the 7 years allowed to those who are
executives or managers on the L1A.
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Payment of Salary
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There is no prevailing wage requirement for
the L-1 category. That is, L-1s can be paid any agreed-upon salary, without
having to meet U.S. government standards. The salary offered is, instead,
considered from a common-sense point of view by INS in the context of
whether it seems to be consistent with an offer of a specialized,
managerial, or executive job. Payment can be by the U.S. entity or the
foreign entity.
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Relationship Between Foreign and U.S. Entities
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It is necessary to document
both the existence of the two business entities (domestic and foreign) and
the necessary "qualifying relationship" between the foreign and
U.S. companies. Key corporate documents are, therefore, needed with the
application. The ‘qualifying relationship’ between the foreign and U.S.
companies means that the relationship is either one of parent / subsidiary
or affiliate. While the L-1 can be used for new companies, these L-1s will
only be granted for one year. It is necessary to show proof of physical
premises in the U.S., and, for new companies, proof that, after the first
year, the company will have the need for a full-time executive / manager.
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Qualifying Positions
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The definitions of the
required categories of "manager," "executive," and
"person with specialized knowledge" are narrowly defined for L-1
immigration purposes.
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Managers are limited to higher-level managers. First-line level managers are
not eligible for L-1 status, unless they fit within the "specialized
knowledge" category. The qualifying L-1 Manager
must:
a) Personally manage the organization, department, subdivision, or function or component.
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b) Supervise and control work of other supervisory, professional, or managerial employees OR manage an essential function within the organization, department, or subdivision. Note that those who manage a function do not necessarily need to be managing other people.
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c) Have authority to hire and fire or recommend personnel actions or, if there is no direct personnel supervision, function at a senior level and exercise discretion over day-to-day operations of the activity or function.
A person in L-1 managerial or executive capacity can
remain in the U.S. for up to seven years.
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As with managers, the executive category is limited to higher-level
executives. The qualifying L-1 Executive
must:
a) Direct the management of an organization or a major component or function of an organization as primary duties.
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b) Establish organizational goals and policies; exercise wide latitude of discretionary decision-making.
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c) Receive only general supervision or direction from higher-level executives, the board of directors, or shareholders of the company.
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d) The executive must supervise the work of others or supervise a function.
The person with specialized knowledge within the organization must:
a) Have ‘special’ knowledge of the company product and its application in international markets, OR
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b) Have an ‘advanced’ level of knowledge of the processes and procedures of the company. Note that, a person with only one year of experience with the foreign company would likely not qualify under this provision.
"Specialized
knowledge" is for other vital company employees who do not meet the
definition of Manager or Executive. The term "specialized
knowledge" should not be confused with the term "specialty
occupation," used in connection with H1B status.
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Restrictions on Offsite Work
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Changes were put into place in 2005 that restrict offsite work by L1B
employees. The employer cannot place the L1B at a worksite other than the
petitioning employer's physical location in certain circumstances. Placement
of an L1B working primarily at a worksite other than the petitioner's
premises is not allowed where either (a) the work is primarily controlled
and supervised by an employer other than the petitioner or (b) the work
performed is essentially labor-for-hire, rather than related to specialized
knowledge pertaining to the petitioning employer.
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Green Card Advantages
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L1As in the executive /
managerial category are eligible, under employment-based first preference,
to obtain Permanent Residency on an expedited basis. The cases are
significantly faster, as
there is no labor certification required. The labor certification is the
first, and often most difficult, stage in the majority of employment-based
permanent residence cases.
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Additionally, the L-1 category (whether L1A or L1B), as with the H1B
category, enjoys the benefit of "dual intent," meaning that
individuals can apply for Permanent Residence without jeopardizing their L-1
status.
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Procedure for Obtaining L-1 Status
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The employer must file a
petition with USCIS together with the sponsoring employer’s detailed letter
and supporting documentation. The petition must be filed with the USCIS
service center having jurisdiction over the place of intended employment.
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After approval of the petition, presuming the employee is working abroad,
the employer must send the approval notice to the employee. The employee
then uses this in connection with an application for an L-1 visa at the
appropriate U.S. Consulate.
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