1. L-1 Visa and
Blanket
L-1 Visa
An L-1 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.
L-1
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 L-1 category, if applicable, is the best category to use, as
it does not involve U.S. Department of Labor at all.
Further, blanket L-1 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 L-1 blanket approval and a job
letter and obtain an L-1 visa.
2.
The Qualifications
for an L-1 Visa
To qualify for an L-1 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 L-1A visa, or require specialized
knowledge about the company’s products, procedures or methods for the L-1B 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 L-1 foreign national
must establish that he or she has:
An
L-1 is an alien coming temporarily to perform services in a managerial or
executive capacity, for the same corporation or firm, or for the branch,
subsidiary or affiliate of the employer which employed him or her abroad, in
an executive, managerial or specialized knowledge capacity. The
employment abroad must have been as an executive or manager for an L-1A visa,
or require specialized knowledge about the company’s products, procedures or
methods for the L-1B 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 requirement of L1 is that the
intra-company transferee must have been employed in a qualifying company
abroad in a managerial, executive capacity, or as a person with specialized
knowledge, for at least one year within the past three years. The regulatory
authority for the L1 visa is found in 8 C.F.R. Section 214.2(1). These
regulations state that an alien who is eligible to receive an L1 intra-company
transfer visa must meet the statutory requirements of the Immigration and
Nationality Acts, which define a qualified alien as:
“a person who has worked
abroad for one continuous year within the preceding three years in an
executive, managerial, or specialized knowledge capacity for a qualifying,
related business entity and who is being transferred temporarily to work in
the United States to work in a executive, managerial, or specialized
knowledge capacity for a qualifying related business entity.”
Three positions, a manager, an
executive, and a person with specialized knowledge, are considered employable
by the USCIS, on the condition that the U.S. employer, which functions as the
petitioner, meet the obligations of a qualifying organization. By working for
a qualifying organization abroad for an entire year during the preceding three
years, an alien can apply for a L1 intra-company transfer visa.
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 L-1A Visa for
Intra-Company Transfer of Executives and Managers
L-1A
is a nonimmigrant visa category designed for the intra-company transfer of
executives and managers in multinational companies to the United States. The
L-1A visa is a nonimmigrant visa which gives the visa holder temporary work
authorization. Also, holding an L-1A visa is considered to be probative of
eligibility for an EB1-Multinational Executives and Managers Green Card
petition.
The eligibility requirements for the L-1A visa
include:
1) there must be a qualifying relationship
between the U.S. petitioning company where the applicant will work and the
foreign company where the applicant has worked;
2) the transferee must hold a managerial or executive level position before
and after being transferred;
3) the transferee must have worked for the foreign entity continuously for
at least one of the past three years.
The L-1A visa is one of the most
popular vehicles by which the owners of foreign businesses can obtain
permanent status in the United States by expanding operations to the United
States. The process is carried out in three steps:
-
Third, once renewed, for an
additional 2 years, the L-1A visa holder may apply for U.S. Permanent
Residency with the support of the U.S. branch.
4.
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.
5.
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
L-1A 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.
6. The
L-1B Visa for Aliens with Specialized knowledge, and the the L-1 Visa Reform
Act of 2004
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.
The issue for L-1B visa
application or extension is whether the petitioner has established that the
beneficiary’s position in the United States will involve specialized
knowledge as required by the regulation.
Section 214(c)(2)(B) of the Immigration Act provides the following:
“For purposes of
section 101(a)(15)(L), an alien is considered to be serving in a capacity
involving specialized knowledge with respect to a company, if the alien has
special knowledge of the company product and its application in
international markets, or has an advanced level of knowledge of processes
and procedures of the company.”
Furthermore, the regulation
defined specialized knowledge 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 or procedures.”
The petitioners requesting L-1B
classification for an employee are usually faced with having to establish that
the beneficiary possesses “specialized knowledge”, and the employee is
coming to the United States to continue to render services requiring that
specialized knowledge. A beneficiary is considered to be serving in a capacity
involving specialized knowledge if he or she has “a special knowledge of the
company product and its application in international markets, or has an
advanced level of knowledge of processes and procedures of the company.
The
USCIS has implemented the L-1 Visa Reform Act of 2004. This law was passed in
December 2004 as part of the Omnibus Appropriations Act for Fiscal Year 2005.
Changes in the legislation were primarily aimed at restricting contract
placement of L-1B workers through agreements between the L-1 sponsoring
employers and unrelated third-party worksite employers. The restrictions on
offsite placement apply to L-1B petitions only, including any L-1B extensions.
These changes are important for all L-1B employers and employees. They should
be prepared to document compliance with the requirements explained below, both
in connection with L-1B petition filings as well as with L-1B visa requests at
the consulate. They should expect higher levels of scrutiny in these
applications and should plan accordingly.
7.
Restrictions on Offsite Work and the Specialized Knowledge Work Allows Offsite
Placement
The L-1B Visa Reform Act prohibits the L-1B employee from working primarily at
a location other than the petitioning employer's physical location in two
situations:
1) The first prohibited
situation is one in which the individual's work is controlled and supervised
by a different employer.
2) The second is where the
arrangement is in the nature of providing local labor to an employer other
than the petitioner, rather than a service that is related to the required
specialized knowledge regarding the petitioning employer.
The required control and
supervision of the L-1B worker are interpreted by ultimate authority over that
worker. The bar to offsite placement does not apply if the offsite work could
not be performed without the specialized knowledge of the petitioning
employer's product, service, or operations, as defined by regulation. This
knowledge must be beyond ordinary job skills.
The L-1 Visa Reform Act also reinstates the requirement that all L-1 employees
work for the qualifying foreign employer for one year out of the past three
years, prior to coming to the U.S. on L-1 status. This rule had previously
been reduced to six months for employees covered by a blanket L-1 approval.
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