L-1 VISA

The L-1 visa is the most common process through which multinational companies transfer their foreign-national employees to the U.S. from overseas. It is also applicable for smaller companies even though USCIS has heightened its scrutiny in cases filed by small enterprises. There is no annual limit to this visa, so employers are able to file for employees’ L-1 visas throughout the year.

Requirements

The requirements for the L-1 visa are as follows:

• There has to be a ‘qualifying relationship’ or nexus between the U.S. and foreign companies. The qualifying relationship can be a parent-subsidiary relationship (via majority ownership), branch, or ‘affiliate’ where one or more individuals own both the U.S. and foreign companies. Where there is less than majority ownership, common control by the same person or entity is deemed acceptable.
• The visa applicant must have been continuously employed outside the U.S. for one of the last three years in a company with a qualifying relationship (see above). Any time in which the visa applicant spent in the U.S. will not count towards the one-year requirement, but time spent elsewhere in the world while working for the foreign entity does count.
• The applicant must be transferring to the U.S. as a manager, executive or specialized knowledge employee. For the manager and executive categories, both positions in the U.S. and in the foreign country have to be managerial or executive in order to qualify. These positions can be defined as follows:
  • An ‘executive’ directs the management of the company, or a major part or function of the organization, and has a supervisory role in the organization (such as President, Vice President, Director, etc.).
  • A ‘manager’ directs the organization, a department, or a function of the organization. A first-line supervisor is not considered a manager unless the person manages professional employees. Functional managers who manage a function but not employees can still be considered managers, but petitions for functional managers tend to be trickier.
  • A ‘specialized knowledge employee’ has special knowledge of the company’s products or services and their applications in world markets, or they have advanced or proprietary knowledge of the company’s processes or procedures. The specialized knowledge cannot be generally available in the industry and must be unique and proprietary to the company and its products, services, processes or procedures. For this position, you would have to prove that it would take the company considerable time, effort and resources to train another person with a similar skill-set to gain this knowledge.

New U.S. Company or Start-up L-1 Visas

If the U.S. company has been doing business for less than a year, additional information must be submitted regarding the plans for the new office. Note that the date of business incorporation does not matter. ‘Doing business’ is defined as continuously and systematically selling goods or services, which means the business has to be ongoing on a routine basis. New office L-1 petitions have to include additional evidence, such as proof that the office space has been obtained, a business plan, and proof that the employee will have a staff to manage after the first year of filing in a managerial or executive capacity.

New companies coming to the U.S. often underestimate the time it will take to set up operations and start accruing revenue. Therefore, it is important to hire an immigration attorney with strong business knowledge to coordinate the optimal time to marry the one-year visa issuance with the business plan to maximize chances of visa renewal success.

L-1 Visa Procedures and Processing Times

The procedure for the L-1 visa petitions begins submission of the application with USCIS. Upon approval, the applicant will attend an interview at the U.S. consulate abroad for L-1 visa stamping. Applicants who are already in the U.S. on another visa may ask for a change of status in the country. Dependents such as spouses or children may apply simultaneously or after the primary applicant’s approval. Larger companies may qualify for Blanket L-1 status, which eliminates the USCIS petition for each individual employee. The company has to file an initial application with USCIS for Blanket L-1 approval. Should it be approved, the L-1 visa applicants can then file their visas directly with the U.S. consulate.

Processing times change constantly, but they are usually 2 to 3 months under normal circumstances. It is possible to speed up the process with USCIS through “premium processing” which will expedite the adjudication to 15 days for an additional visa. Visa interview scheduling times at consulates around the world also varies (typically 1 to 4 weeks depending on the location).

L-1 Visa Validity, Family Members and Green Cards

The L-1 visas are generally given validity of three years, but L-1s sponsored by newer companies tend to be approved for only one year. In order to get the extension after one year, the U.S. company must prove that they have the operations and resources to support the applicant’s continued employment in the country. L-1 renewals are approved in 2-year increments. There is a maximum period of stay in the U.S. for 7 years if admitted as a manager or executive, or 5 years if admitted as a specialized knowledge employee.

Applicants must intend to leave the U.S. when their stay is over. L-1 visas are not meant to be permanent immigration options. However, a person with an L-1 visa may also pursue permanent residency simultaneously without any negative impact on the ability to obtain, maintain, or extend his or her L visa.

Spouses and minor children (under 21) of L-1 visa holders receive L-2 visas. Spouses with L-2 visas may apply for work authorization upon arrival in the U.S. and then work independently without a visa sponsor. Children can study in the U.S. without separate sponsorship but they are not permitted to work.

For visa applicants who qualify in the managerial or executive capacity, there is a faster route for a green card, one that does not require a labor certification. However, the sponsoring U.S. employer must be an established company, not a new entity.

Filing for Your L-1

In the last four to five years, USCIS has been increasing its scrutiny over specialized knowledge employees in L-1 petitions. While there is no change in the regulations, USCIS has been interpreting them much more stringently than before. Thus, before filing for an L-1 visa, the job description and the specialized knowledge has to be adequately reviewed and prepared by a quality immigration lawyer to maximize chances of success for the petition. If you’re interested in obtaining an L-1 visa for you or your employee(s), or if you need an L-1 extension, give us a call to start on your case today. We’ll determine the best strategy and guide you through common issues that can lead to delays and denials.