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L-1A International Intra-Company Transfers (Executives / Managers)

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TEMPORARY EMPLOYMENT OF “CORPORATE TRANSFEREES” – THE L-1 CATEGORY

 The L-1 or intracompany transferee nonimmigrant status is appropriate for the transfer of individuals who have been employed by the same or affiliated company outside the U.S. for at least one (1) year in the three (3) years immediately preceding the filing of the petition on behalf of the foreign national.  Executives and managers are permitted to enter for up to a total of seven (7) years and individuals fitting the definition of “specialized knowledge” are permitted to enter for up to a total of five (5) years. Normally the initial approval period is for three (3) years with extensions as permitted for two (2) years until the maximum permissible period has expired.  When the company is a new entity in the U.S., however, the initial entry is limited to one (1) year.  Further extensions of two (2) years, until the maximum permissible period, depend on the ability of the company to demonstrate continuing operations.

PROCEDURAL POINTS:

The process is initiated by a petition filed with the United States Citizenship and Immigration Services in the U.S., directly at the U.S. Consulate abroad if the company holds a blanket “L” approval or at the Canadian/U.S. border for Canadian citizens. For non Canadian citizens once the petition is approved, a process that normally takes between three-twelve weeks, the approval notice and instructions for processing the application for issuance of the visa at the appropriate U.S. Consul will be provided by USCIS. Consular processing time varies significantly depending on the Consulate selected. Once the visa is issued, the individual can enter the U.S., be issued L-1 status and commence paid employment at the U.S. facility.  Canadian citizens can appear at a Class A port of entry and have their petition approved on the spot and be admitted to the U.S.  Unlike the H-1 classification that requires all income be paid by a U.S. source, the L-1 holder can receive all or part of their salary from their company abroad.

To qualify, a number of facts to demonstrate the eligibility of each individual applying for L-1 status must be proven.

  1. The sending company (the company from which the individual gains the required qualifying experience) and the receiving company (the company for which services will be performed in the U.S.) must be affiliated, within the definitions set by statute and regulation.  Normally this involves both the sending and receiving company be traced to a single point of ownership of more then 50% of each or that one owns more than 50% of the other. 50-50 joint ventures created by the sending company and a U.S. company can also be receiving companies.
  2. The individuals to be transferred must have been employed by the sending company for at least twelve (12) months during the three (3) year period prior to the petition.
  3. The individuals(s) to be transferred must meet the definition of “executive”, “manager” or “specialized knowledge”, both during the qualifying period of employment abroad (see 2 above) and as to the assignment to be undertaken in the U.S.
    • Generally speaking, executives are individuals in the top management of companies with many layers of personnel.  They have responsibility for directing the management of the company, including other senior managers.
    • Managers are responsible for a major division, department or function with hiring and firing and budget responsibility as well as discretion over the day to day operation of the company or part of the company managed.  A first line supervisor is not a manager.
    • Individuals with specialized knowledge are either professionals or other individuals who possess information concerning the petitioning company’s product, service, research, equipment, techniques, or management or expertise in the company’s processes and procedures.

4.    The individual must be otherwise admissible to the U.S.

In terms substantially similar to those in the Immigration and Nationality Act, the North American Free Trade Agreement (hereafter "NAFTA") provides that Canadian citizens may enter the United States temporarily if the business person "has been employed continuously for one (1) year out of the last three (3) by the firm or corporation… and who seeks to enter the United States temporarily in order to continue to render his services to the same employer or a subsidiary or affiliate thereof in a capacity that is managerial, executive or involves specialized knowledge." Under the NAFTA, an application for "L" entry by a Canadian citizen may be presented at any Class A port of entry located on the United States – Canadian border or a United States pre-clearance/pre-flight station in Canada.  Upon conditional approval, the L-1 will be issued an an admission stamp and is admissible immediately.  The application is sent for review in the United Status to the appropriate service center.  Confirmation (or denial) from the service center will follow in about thirty (30) days.  Therefore, upon admission, the applicant receives a receipt and an admission stamp but not the approval notice until  service center review.  The approval can be issued for an initial period of up to three (3) years. An extension of stay may be authorized in increments of up to two (2) years for beneficiaries of both individual and blanket petitions. The total period of authorized stay may not exceed five (5) years for aliens in a specialized knowledge capacity, and seven (7) years for aliens in a managerial or executive capacity.  No degree is required for the foreign national to qualify.

Intracompany Transferees Executives and Managers

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 in this category, the employer must

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

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.

New Offices

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

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, 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.

Blanket Petitions

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

The approval of a blanket L petition does not guarantee that an employee will be granted L-1A classification. 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

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