The L-1A and L-1B visas are ideal for a foreign worker employed by a company abroad who is transferring to a subsidiary, branch or affiliate office within the United States. This visa is also appropriate where a foreign company wishes to open a new branch office within the United States. Eligible employees include executives, managers and employees who have specialized knowledge of the company's products and procedures. To obtain the L-1 visa, the foreign employee must apply at the U.S. consulate in their home country.
I have successfully handled numerous L-1A and L-1B petitions for start-ups, small and large companies. My expertise includes new office petitions, the dreaded first extension of a new office petition, regular extensions and addressing DHS Requests for More Evidence. Even in this challenging immigration climate, my cases are approved because I review the legal and documentary criteria for extensions with my clients, even when filing the first petition.
Employees Who are Eligible for the L-1 Visa:
Eligible employees must be entering to work for the U.S. company as a manager, executive or to apply specialized knowledge of the company's products and operating procedures. Factors determining an applicant's eligibility include:
- Within the past three years, the sponsoring company must have employed the applicant for one year at a branch outside the U.S.
- The applicant must be seeking entry to provide temporary service to a branch office of the same employer (parent, affiliate or subsidiary company)
- The applicant must demonstrate he or she has adequate education and experience to completing the U.S. job duties successfully
- For a specialized knowledge employee, he or she must clearly demonstrate essential skills and familiarity with the company's proprietary software, product line, operating procedures, techniques, and other proprietary subject matter
Which Companies Can Sponsor Employees for L-1 Status:
Factors determining a foreign company's eligibility to sponsor employees for an L-1 visa include:
- Extensive documentation that they actively conduct business on a regular, consistent basis
- Clear demonstration of financial solvency
- Have employees who work on a consistent, part or full time basis
- U.S. company must be branch, affiliate, subsidiary of the foreign business or vice versa (i.e. 50% ownership)
- Must conduct business in the United States and at least one other country, either directly or via a branch office (unless opening a start-up office in the United States)
Difference between an L-1A and an L-1B visa:
Multinational executives and managers are given the L-1A visa. Specialized knowledge workers fall under the L-1B visa category. One significant difference is time: a manager/executive (L1-A) may remain in the U.S. for up to seven years, while a specialized knowledge (L1-B) employee is only allowed a five year stay.
More significantly, L-1A visa holders who are interested in obtaining a green card do not need to test the U.S. labor market first. This means they are allowed to skip the difficult and time consuming PERM labor certification process, which is the first step in the green card process.
Definition of L-1A Executive or Manager:
An executive is someone who has primary responsibility for directing the management of the company or a major function, who creates and updates policies, strategies and goals, who has a very high level of independent decision making, and has discretionary decision making power without much oversight from the foreign company or Board of Directors.
A manager is divided into two subsections: one who manages an important company function or department and one who is more involved in the day to day running of the company. The latter definition includes hiring, training, supervising and firing employees, managing the company, a function or department, having discretionary decision making over daily practical operations. Additionally, those supervises must be professional (having bachelor's degrees) and the manager must also have a post-secondary degree in a relevant field of study.
Definition of L-1B Specialized Knowledge Employee:
A specialized knowledge employee is someone who possesses skills, training and knowledge of the company's products, techniques, training manuals and operating procedures. Additionally, this person has knowledge that is: different from that generally found in the specified industry; uncommon and distinguished by some unusual quality; generally unknown by other professionals; essential to the company's competitiveness in the U.S. marketplace; difficult to teach or transfer to new workers; normally only gained through prior experience with the sponsoring employer.
As a warning, DHS is at a fifteen year high in issuing Requests for Evidence with L-1B filings. I have successfully handled numerous difficult RFE requests during this period of time. These RFE's are due to the fact DHS has significantly narrowed the legal definition of specialized knowledge. More than ever, it is important to fully evaluate eligibility with your attorney before moving forward with this application. Important factors include: knowledge and training of the applicant as compared to the industry and others similarly employed at the company; the current position abroad; the sponsored position in the US; company training methods; type and kind of specialized knowledge tools, products, etc that this person will use.
Advantages of the L-1A Visa Over Other Employment Visas:
The L-1A visa is distinguished from other employment visas in several ways. L-1A visa holders who are applying for a green card are allowed to skip the PERM labor certification application, the first step of the process. There is no minimum prevailing wage requirement, DHS filing fees are lower, and bachelor's degrees are not required to show eligibility. As a practical matter, a qualifying employee may obtain a green card more quickly than with other employment based categories.
Green Card Procedures for L-1 Visa Holders:
Applicants entering as Executives or Managers are eligible for a green card much more quickly than others applying for a green card via employment. Generally there are three steps to obtaining a green card via employment. Executives and managers do not need to file the time consuming first step (labor certification application). Instead, the applicant moves on to step two (the I-140 immigrant petition) and step three (the green card application).
Procedures to Obtain L-1 Status and L-1 Visa:
There is a two step process for applicants who are outside the United States. First the employer files an L-1 petition with DHS inside the United States. Once the application is approved, the file is sent to the U.S. Consulate in the applicant's country of origin for further processing. The applicant then applies for the L-1 visa at the U.S. consulate in their home country.
The U.S. Consulate generally issues a multiple entry L-1 visa that is good for two years. This visa means the recipient may apply for entry to the United States within the time periods listed on the L-1 visa. This visa does not guarantee entry to the United States. This visa does not determine the length of time a person may remain in the United States. All this visa does is allow the recipient to ask for entry to the United States at the port of entry (airport, seaport, land entry). At the port of entry, a DHS officer will then determine if the applicant is allowed to enter the U.S. and for how long. The officer will note the visa category and the final day of authorized stay on an I-94 card and then staple this card into the applicant's passport. The L-1 visitor must leave the U.S. by the date listed on the I-94 card unless having applied for an extension or change of status to a new non-immigrant visa category. A manager/executive (L1-A) is permitted to extend their status for up to seven years. A specialized knowledge (L1-B) employee may extend their status for five years.
For those applicants lawfully in the United States, the employer files an L-1 petition with DHS indicating a request to change the applicant's status. The applicant does not need to depart the U.S., instead automatically switches to L-1 status on the start date indicated on the DHS approval notice.
Other Business Visas Which Might Apply:
In addition to L-1 visas, DHS also grants business immigration visas to foreign workers with bachelor's degrees, investors, and applicants seeking on-the-job training. Some categories require a bachelor's degree, but several work visas exist for those lacking a four year college level degree. For more information about these business immigration visas, please read these articles:
- B-1 and B-2 VISAS: Business and Pleasure
- F-1 VISA: Employment Options for Students
- E-2 VISA: Investors
- H-1B Visa: Speciality Employees
- H-3 Visa: Training Visa
- J-1 VISA: Trainee and Intern Exchange Visitors
- O VISA: Persons of Extraordinary Ability
- P Visa: Internationally Recognized Athletes, Artists, Entertainers and Culturally Unique Entertainers
- TN VISA: Canadian and Mexican Workers