1. Requirement of Qualified Organization
A company must establish that it has reached a stage of organizational development, and
it has such complexity that it can be realistically concluded that the individual seeking transfer is primarily engaged in executive or managerial duties.
To
qualify as an L-1 petitioner, an employer, either U.S. or foreign employer, must
establish that it is affiliated as a parent, subsidiary or affiliate with a U.S.
multinational company, and that it wishes to transfer a manager, executive or
specialized knowledge employee from the foreign company to the U.S. company. To
establish this affiliation, a company must provide the USCIS with following
documents:
In addition to the requirement that the individual seeking transfer should be employed in a managerial, executive or specialized knowledge capacity, the Immigration and Nationality Act
(INA) requires that the individual has been employed in a full-time capacity for the foreign parent, branch, affiliate or subsidiary for at least one year within the previous three years.
2.
The Definition of Foreign Parent, Branch, Affiliate or Subsidiary
The following definitions are relevant:
1. "Parent" is defined as a firm, corporation, or other legal entity which has subsidiaries.
2. "Branch" is defined as an operating division or office of the same organization housed in a different location.
3. "Subsidiary" is defined as a firm, corporation or other legal entity of which a parent owns, directly or
indirectly, more than half of the entity; or owns, directly or indirectly, 50%
of a 50-50 joint venture and has equal control and veto power over the entity;
or owns, directly or indirectly, less than half of the entity, but in fact
controls the entity.
4. "Affiliate" is defined as:
a). one of two subsidiaries both of which are owned by the same parent or individual, or
b). one of two legal entities owned and controlled by the same group of individuals, each individual
owning and controlling approximately the same share or proportion of each entity, or
c). certain international accounting firms.
While staffing levels of the business are not as crucial in determining whether or not an individual is acting in an executive or managerial capacity, it is nevertheless a factor in such a determination. However, the
INA specifically states that if staffing levels are used as a factor, the reasonable needs of the organization, component or function in light of the overall purpose and stage of development must be taken into account.
The USCIS defines the term "qualifying organization" as a U.S. or foreign entity which meets the requirements of a parent, branch, subsidiary, or affiliate and is or will be doing business
as an employer in the United States, and at least one other country for the duration of the alien's stay in the United States as an
intracompany transferee.
This definition requires that the U.S. employer continue to have a related entity doing business abroad. That entity, however, needs not be the alien's former employer. There is nothing in the definition to prevent the dissolution or sale of the former employer so long as another affiliate continues to do business abroad.
3.
L-1 Petitions for for Beneficiaries Opening a
New Office in the United States
Special
rules apply for aliens being transferred to open a new office in U.S. A new office
means an organization which has been doing business in the United States through
a parent, branch, affiliate or subsidiary for less than one year.
Generally, these types of petitions are initially approved for only one year and
additional evidence, such as evidence of office space, a business plan and more, must be
submitted with the petition.
Even a foreign company does not have a pre-existing subsidiary or affiliate operating in the United States, it is possible for individuals to be transferred to the United States under
L-1 status for the purpose of opening a new office.
However, special regulations will apply to persons being transferred as new office
L-1's. The most significant of these regulations limit the initial approval period to one year, after which additional evidence will have to be filed to evidence the U.S. office's need for a managerial or executive employee.
4.
L-1 Petitions for Beneficiaries of a Startup Company
While ordinarily L-1 beneficiaries are transferred from an established foreign
company to an established U.S. company, beneficiaries may also enter the U.S. in
L-1A or L-1B status to work for a startup company. A startup company is one that
has been engaged in the regular, systematic provision of goods or services for
less than one year.
The startup company, like any other company petitioning for an L-1 beneficiary,
must exist in a qualifying corporate relationship with the company abroad at
which the beneficiary has worked.
An L-1 will not be granted for a startup company until significant plans have
been laid for the new company. The new company must have already been
incorporated, and must have obtained an Employer Identification Number (EIN).
The company must also have already secured physical premises in the U.S.
sufficient to house the new operation. The petitioner must provide USCIS with
evidence of those premises in the form of a lease or title deed.
If the petition is for an L-1A beneficiary, the petitioner must also provide a
business plan sufficient to show that within one year, the company will have
grown to the point where it can support a managerial or executive position.
Unlike traditional L-1s, L-1s granted for startup companies are only issued for
an initial period of one year. The purpose behind this limitation is to allow
USCIS to review the financial status of the new company after one year, to
ensure that it is becoming or has become a viable company capable of supporting
an L-1 beneficiary. After the one year has passed, beneficiaries’ L-1 status
can be renewed in two-year increments all the way up to the 5-year maximum for
L-1Bs or the 7-year maximum for L-1As.
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