1. L1 Visa and Blanket L1 Visa
An
L1 visa holder is a foreign national who has worked abroad for at least one year
out
of the three years immediately prior to entry to the United States as a manager,
executive, or specialized knowledge employee of a foreign affiliate of a U.S.
company, and who will be transferred to the U.S. affiliate to work in a similar
position.
L1
managers also include function managers, meaning people who oversee production or a function instead of personnel. The
specialized knowledge subcategory aims to facilitate transfer of high level
technical staff. The L1 category, if applicable, is the best category to use, as
it does not involve U.S. Department of Labor at all.
Further, blanket
L1 visa authorization is an
attractive option for big companies transferring managers, executives or
specialized knowledge personnel. A blanket L visa petition enables a company to
file once with the USCIS. Following
approval, foreign personnel may simply appear at an embassy without prior
application or appointment, bearing a copy of the L1 blanket approval and a job
letter and obtain an L1 visa.
2.
The Qualifications
for an L1 Visa
To qualify for an L1 visa, the foreign national must have worked outside of the United States for an
employer for at least one year within the three years prior to transferring to the United States.
The employment abroad must have been as an executive or manager for an L1A visa, or require specialized
knowledge about the company’s products, procedures or methods for the L1B visa. The foreign citizen must be transferred to work for the same employer in the United States, or a parent, subsidiary or affiliate
company. The
L1 foreign national
must establish that he or she has:
In
addition, the foreign firm and the U.S. firm must have a “qualifying
relationship.” The foreign company may be a parent, affiliate, or subsidiary
of the prospective U.S. employer. The U.S. and the foreign firm must have common
majority ownership or common control by the same persons or entities. The
employer may include corporations, non-profits, religious or charitable
organizations. Furthermore, the foreign national must be
coming to work as an executive, manager, or employee with specialized
knowledge.
In order to qualify, the foreign national must establish that he/she has worked in an executive, managerial or specialized knowledge capacity
abroad. He/she must also establish to enter the United States to work for the same company or a parent, affiliate or subsidiary thereof, in an executive, managerial or specialized knowledge
capacity, as defined in the following.
3.
The Definition of Executive Capacity
The definition of
"Executive Capacity" requires the executive to primarily direct the management of the organization or a major component or function.
Executive
capacity means an assignment within an organization in which the employee
primarily
(a) directs the management of the organization or a major component or
function of the organization;
(b) establishes the goals and policies of the organization, component or
function;
(c) exercises wide latitude in discretionary decision-making; and
(d)
receives only general supervision or direction from higher level executives, the
board of directors or stockholders of the organization.
4.
The Definition of Managerial Capacity
The definition of
"Managerial Capacity" specifically provides that the manager of an essential function needs not supervise any other employee in order to be eligible for
L1A classification. However, the manager must primarily perform managerial functions as well as function at a senior level, within the organizational hierarchy with respect to the function managed and exercise discretion, over the day-to-day operations of the function.
Managerial
capacity means an assignment within an organization in which the employee
primarily
(a) manages the organization, or a department, subdivision, function
or component of the organization;
(b) supervises and controls the work of other
supervisory, professional or managerial employees, or manages an essential
function within the organization, or a department or subdivision of the
organization;
(c) has the authority to hire and fire or recommend those as well
as other personnel actions (such as promotion and leave authorization), if
another employee or other employees are directly supervised; if no other
employee is directly supervised, functions at a senior level within the
organizational hierarchy or with respect to the function managed;
(d)
exercises discretion over the day-to-day operations of the activity or function
for which the employee has authority. A first-line supervisor is not considered
to be acting in a managerial capacity merely by virtue of the supervisor's
supervisory duties unless the employees supervised are professional.
4. The
Definition of Specialized knowledge
The "Specialized knowledge" is defined as special knowledge possessed by an individual of the petitioning organization's product, service, research, equipment, techniques, management, or other interests and its application in international markets, or an advanced level of knowledge or expertise in the organization's processes and procedures.
5. Working as an Independent Contractor of the Foreign Affiliate or Subsidiary
Working as an independent contractor of the foreign affiliate or subsidiary is
generally insufficient for the purposes of satisfying the twelve month
employment requirement. The relationship must be employer-employee,
although it may be possible to establish this relationship even without formal
payroll records.
The USCIS looks at the degree of control that the company has over the alien to
determine if he or she is really an employee or an independent contractor.
On December, 2004, U.S. Citizenship and Immigration Services (USCIS) announced that President Bush has signed the Omnibus Appropriations Act for FY 2005,
which contains the L-1 Visa Reform Act of 2004.
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