The L-1 Nonimmigrant Visa – Temporary Transfer for Intra Company Foreign Executives, Managers and Employees with Specialized Knowledge

One of the benefits of living in our interconnected world are endless employment opportunities around the globe. Employers from the United States, who are also employers in at least one foreign country, can take advantage of L-1 visas to temporarily transfer their foreign employees to work in the United States

The L-1 Visa, a nonimmigrant visa, is divided in two categories: the L-1A and the L-1B. Under the L-1 nonimmigrant categorization, both the L-1A and the L-1B share many of the same requirements but also differ precisely in who gets to apply for which visa.

Since the L-1 visa is a nonimmigrant visa, the duration of stay for foreign employees is temporary and ranges  anywhere from 1 year up to 7, depending on the visa category and other requirements.

Companies like Google, General Electric, Amazon, IBM and Exxon Mobile are only some of the many companies petitioning their foreign workers to come to the United States.

The L-1A vs the L-1B – What’s the difference?

Although the L-1A and L-1B visa are under the L-1 visa classification, they are distinguished by the applicant requirements established by the United States Citizenship and Immigration Services (hereinafter USCIS).

The L-1A visa is formally known as the L-1 Intracompany Transfer Executive or Manager classification.

The foreign employee being petitioned must work in an executive or managerial capacity within the company. An executive is defined by USCIS as an employee making decisions of wide latitude without oversight. A manager is defined as an employee who supervises and controls other employees, manages essential functions, and manages the company or parts of the company.

The length of stay depends if the company is already physically established in the United States, or if the company has the intent to do so. If an L-1A employee is transferred to create a new U.S. office, their stay is initially limited to one year. If the company is already established, the L-1A employee is initially limited to three years. However, in certain circumstances, extensions are available. Extensions allow an L-1A employee to stay and work in the United States for a maximum of 7 years.

The L-1B visa is formally known as the L-1 Intracompany Transferee Specialized Knowledge classification.

To qualify for this specific category, the foreign employee must have “specialized knowledge”. USCIS defines specialized knowledge as knowledge carried by the foreign employee pertaining to the company’s products, management, equipment, research and more. Advanced level of knowledge in the company’s process and procedures also qualifies as specialized knowledge.

The definition of specialized knowledge is more ambiguous then the one provided for the L-1A visa, so it’s up to the employer to prove that the foreign employee they are petitioning really is special.

When adjudicating an application, USCIS may consider if the employee:

• has specialized knowledge that cannot be easily transferred or taught without difficulty or financial expenditure;
• earned specialized knowledge that would only be obtained with the company;
• has significantly impacted the company’s success, profit, image, etc. and more.

General L-1 Visa Requirements

Apart from the distinct qualifications required of each foreign applicant for either category, the rest of the L-1 visa requirements are shared between the L-1A and L-1B.

Besides falling into one of the two L-1 visa categories, employees in either category require a minimum of 1 year working with the company, within the last 3 years.

First and foremost, an employer can only petition a foreign employee if they are present and conducting business in the United States, or intend to do so. The employer must be present in at least 1 foreign country or have affiliations with a foreign company.

The employer must also be “doing business” in all involved countries. USCIS defines this as the regular systematic, and continuous provision of goods and/or services by all companies involved.

When an employer intends to establish presence in the United States, they must have the physical space in the United States already allocated for the planned office.

Foreign employees under any L visa category can be joined by spouses and/or unmarried children under 21 in the United States. A spouse and/or child will receive L2 status upon approval of the L1 visa. Spouses are allowed to work legally in the United States and the children are permitted to go to school. Their duration of stay depends on the duration of the main applicant.

How To: The L-1 Application Process

Step 1: Immigrant Petition with USCIS

Assuming the employer and employee have all necessary qualifications, the first step is for the employer to file Form I-129, Petition for Nonimmigrant Worker.

The employer must provide proof of a qualifying relationship with the U.S. company and the foreign company. It’s also the responsibility of the employer to prove the foreign employee fulfills the role of manager, executive or employee with specialized knowledge as defined by USCIS. They must show the foreign applicant’s duties and length of role in the foreign country, as well as how this role will be fulfilled in the United States.

Employer’s who intend to do business in the United States must provide proof of the space for the new office, as must prove the new office can support a future executive or manager leadership role. Finally, an employer must show they have the financial resources and logistical plan to establish and pay for all aspects of establishing a U.S. office.

Employer with over 3 domestic and foreign branches or affiliates, annual sales of $25 million, a U.S. workforce of over 1,000 employees or other specified qualifications, they may be eligible for a “blanket petition.” A blanket petition lets employers provide proof of the necessary relationship with foreign companies ahead of time. If granted, an employer can quickly bring foreign employees to the United States without filing an individual petition. Foreign employees must still fill all employee requirements.

Step 2: Approved Form I-129 and Visa Application with the Department of State

Congratulations on an approved Form I-129 (or Form 1-129S in the event of a blanket petition). The process now moves to the United States Department of State (DOS hereinafter), the agency responsible for issuing the actual visa that allows entry and work in the United States.

Because the L visas are nonimmigrant visas, Form DS-160 is required. After the application is submitted to the DOS for you (and your family members), an interview is scheduled. The interview at your local U.S. embassy or consulate determines your eligibility to even enter the United States.

If approved, congratulations again! But with this approval, you are officially granted a visa for you (and family members) to enter the United States and get to work!

Life with an L-1 Visa. Now What?

Now that you are in the United States, you must obviously comply with all laws and regulations to maintain your L-1 status. Because you will already be employed, you do not need to obtain an employment authorization document.

Most importantly, you can only work for the employer that petitioned you and within capacity you were hired for – as a manager/executive or employee with specialized knowledge. Failure to work for your employer and/or working elsewhere is a violation of status, and could result in a revoked visa.

Because you will already be employed, you do not need to obtain an employment authorization document. If your spouse applies for work authorization and is approved, they may work wherever they choose.

One bright advantage of the L1 visa classification is that it is a “dual intent visa,” meaning the foreign employee has access to a green card and permanent stay in the United States with appropriate sponsorship. The L1 status itself does not lead to a green card, but through an appropriate immigration visa petition, family or employment, can eventually result in a permanent stay in the United States!

Welcome and enjoy your stay in the United States!

Please note: None of the above should be construed as personal legal advice. Considering the complexity of immigration applications, and if you are interested in applying for an L-1 visa, please consult with your employer and an immigration attorney.