The L-1A nonimmigrant classification enables a U.S. employer to transfer an executive or manager from one of its affiliated foreign offices to one of its offices in the United States. This classification also enables a foreign company which does not yet have an affiliated U.S. office to send an executive or manager to the United States with the purpose of establishing one. The employer must file Form I-129, Petition for a Nonimmigrant Worker, on behalf of the employee.
The following describes some of the features and requirements of the L-1 nonimmigrant visa program.
General Qualifications of the Employer and Employee
To qualify for L-1 classification, and L1 A Visa, in this category, the employer must
Have a qualifying relationship with a foreign company (parent company, branch, subsidiary, or affiliate, collectively referred to as qualifying organizations); and
Currently be, or will be, doing business as an employer in the United States and in at least one other country directly or through a qualifying organization for the duration of the beneficiary’s stay in the United States as an L-1, holding an L1 A Visa. While the business must be viable, there is no requirement that it be engaged in international trade.
Doing business means the regular, systematic, and continuous provision of goods and/or services by a qualifying organization and does not include the mere presence of an agent or office of the qualifying organization in the United States and abroad.
Also to qualify, the named employee must
Generally have been working for a qualifying organization abroad for one continuous year within the three years immediately preceding his or her admission to the United States; and
Be seeking to enter the United States to render services in an executive or managerial capacity to a branch of the same employer or one of its qualifying organizations.
Executive capacity generally refers to the employee’s ability to make decisions of wide latitude without much oversight. Managerial capacity generally refers to the ability of the employee to supervise and control the work of professional employees and to manage the organization, or a department, subdivision, function, or component of the organization. It may also refer to the employee’s ability to manage an essential function of the organization at a high level, without direct supervision of others. See section 101(a)(44) of the Immigration and Nationality Act, as amended, and 8 CFR 214.2(l)(1)(ii) for more complete definitions.
For foreign employers who are seeking to send an employee to the United States as an executive or manager in order to establish a new office, it must also be shown that
Sufficient physical premises to house the new office have been secured
The employee has been employed as an executive or manager for one continuous year in the three years preceding the filing of the petition; and
The intended U.S. office will support an executive or managerial position within one year of the approval of the petition.
See 8 CFR 214.2(l)(3)(v) for details.
Period of Stay
Qualified employees entering the United States to establish a new office will be allowed a maximum initial stay of one year. All other qualified employees will be allowed a maximum initial stay of three years. For all L-1A employees, holding an L1 A Visa, requests for extension of stay may be granted in increments of up to an additional two years, until the employee has reached the maximum limit of seven years.
Family of L-1 Workers
The transferring employee may be accompanied or followed by his or her spouse and unmarried children who are under 21 years of age. Such family members may seek admission in L-2 nonimmigrant classification and, if approved, generally will be granted the same period of stay as the employee. If these family members are already in the United States and seeking change of status to or extension of stay in L-2 classification, they may apply collectively, with fee, on Form I-539. Spouses of L-1 workers may apply for work authorization by filing Form I-765 with fee. If approved, there is no specific restriction as to where the L-2 spouse may work.
Certain organizations may establish the required intracompany relationship in advance of filing individual L-1 petitions by filing a blanket petition. In order to establish eligibility for blanket L certification, the employer
And each of the qualifying organizations must be engaged in commercial trade or services
Must have an office in the United States which has been doing business for one year or more
Must have three or more domestic and foreign branches, subsidiaries, and affiliates
Must meet one of the following criteria:
Along with the other qualifying organizations, have obtained at least 10 L-1 approvals during the previous 12-month period; or
Have U.S. subsidiaries or affiliates with combined annual sales of at least $25 million; or
Have a U.S. work force of at least 1,000 employees.
The approval of a blanket L petition does not guarantee that an employee will be granted L-1A classification and L1 A Visa. It does, however, provide the employer with the flexibility to transfer eligible employees to the United States quickly and with short notice without having to file an individual petition with USCIS. In most cases, once the blanket petition has been approved, the employer need only complete Form I-129S, Nonimmigrant Petition Based on Blanket L Petition, and send it abroad to the employee along with a copy of the blanket petition Approval Notice and other required evidence, so that the employee may present it to a consular officer.
See 8 CFR 214.2(l)(4) and 8 CFR 214.2(l)(5) for more details regarding blanket petitions.
For more information on obtaining an L1 A Visa, contact us today.