L1 VISA INTRACOMPANY TRANSFER
The L-1 visa is a nonimmigrant visa which allows foreign companies to relocate an executive or manager from one of its affiliated foreign offices to one of its offices in the United States. If the foreign company doesn’t have an affiliated U.S. office, L1 visa also allows to send an executive or manager to the United States with the purpose of establishing one.
How Big the Foreign Company Has to Be to Apply for L1 Visa?
There is no requirement to the size of the foreign company that can apply for L1 visa provided by law. However, we would recommend to consider L1 visa for those foreign companies that have more than 20 employees and had been on market for more than 5 years. If your company is smaller than this, you should take a closer look at E2 or E1 visas as more suitable options for business immigration.
To qualify for L-1 visa, you must meet following requirements:
- Qualifying relationship between U.S. company and foreign company
In order for the company to apply for L-1 status, the foreign company must have a qualifying relationship with a foreign company. This relationship can be shown through existence of common ownership and control between 2 business entities. In other words, in order to establish qualifying relationship between U.S. company and foreign company, you need to demonstrate how the U.S. company is owned and controlled by foreign company. This can be achieved by opening in the U.S. office that is parent, affiliate, subsidiary or branch of the foreign entity.
“Parent” means a firm, corporation, or other legal entity, which has subsidiaries. Any business entity, which has subsidiaries, is a parent.
“Branch” is simply defined as an operating division or office of the same organization housed in a different location. Any such office or operating division, which is not established as a separate business entity, is considered a branch.
“Subsidiary” means a firm, corporation, or other legal entity, 50% of which is controlled and owned by parent company.
- Continuing to do business in the U.S. and abroad
- You need to demonstrate that you continue to do business in the U.S. and at least one foreign country. In order to qualify for L1 visa, you need to keep international nature of the business while you are on L1 visa by maintaining your business activity both in foreign country and in the U.S. The L visa was not created for self-employed persons to enter the United States to continue self-employment, nor was the L visa intended to accommodate the complete relocation of foreign businesses to the United States.
- Doing Business Requirement. In order to be eligible for L1 visa, you need to prove that both foreign company and U.S. office are doing business. “Doing business” means the regular, systematic, and continuous provision of goods and/or services by a qualifying organization. The mere presence of an agent or office of the qualifying organization in the United States and abroad doesn’t satisfy this requirement. Your business operation has to be viable. You will need submit the USCIS tax returns, profit and loss sheets, bank statements, payroll statements, contracts, invoices, customs declaration as a proof of existence of actual business activity.
- There is no requirement that your business has to be engaged in international trade.
III. The employee must be seeking an entry into the U.S. to provide professional services in “managerial capacity,” “executive capacity,” or in capacity that requires “specialized knowledge”.
The fact that a transferred employee is simply carrying the title of manager, executive or professional with “specialized knowledge” is not sufficient to satisfy this requirement. One of the most common requests of evidence that business immigration attorneys receive is the lack of evidence that show proof of rendering professional services by transferred employee in “managerial capacity,” “executive capacity,” or in capacity that requires “specialized knowledge.”
- The employee must meet the requirement of having had one year of prior continuous qualifying experience within the previous three years
- Prior continuous one year full time employment. In order to relocate an employee to provide professional services in “managerial capacity,” “executive capacity,” or in capacity that requires “specialized knowledge,” employee must have been employed for a foreign company continuously for 1 year . Moreover, the employment with foreign company has to be on a full time basis. Continuous part time employment doesn’t meet this requirement.
- Brief trips to the U.S. do not interrupt continuous employment with foreign company. Periods spent in the United States in any authorized capacity on behalf of the foreign company or U.S. company and brief trips to the United States for business or pleasure, do not interrupt the continuity of the one year of continuous employment abroad for L-1 status, but do not count toward fulfillment of that requirement.
Period of Stay
Qualified employees entering the United States to establish a new office will be allowed a maximum initial stay of 1 year. For managers and executives, these visas are typically granted for three years initially, followed by one 2-year extension. The maximum time a transferee can stay on an L-1 visa is seven years.
For the positions involving “specialized knowledge”, these visas are typically granted for three years initially, followed by one 2-year extension. The maximum time a transferee can stay on an L-1 visa is five 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 on L2 visa. The duration of stay of spouse and children is generally the same as employee’s period of stay. Spouses may apply for work authorization and work for any employer without any imposed restrictions.
From L1 visa to Green Card
Once you receive L1 visa, you will have an opportunity to apply for a green card in EB1C “Multinational Manager and Executive” employment-based immigrant preference category. This category was specifically created for managers and executives who meet the L-1A non-immigrant standards and are interested in becoming lawful permanent residents.
Following requirements must be met in order to apply fro a green card:
- The employee must have been employed for one year within the past three years by the U.S. company and work in the United States in a managerial or executive capacity.
- The company must conduct business within the United States and another country in the regular, systematic, and continuous provision of goods and services.
- The company must have been in existence in the United States for at least one year.
Although it is not required to apply for green card in EB-1C category after obtaining L1 visa, you will have a stronger case applying for a permanent residency if you were on L1 visa previously.
The main advantage of applying for a green card in EB-1C category is that the immigrant visa numbers are always available and you can become a permanent resident without additional waiting time.
Opening a New Office
L1 visa can be obtained for foreign companies to open a new office in the U.S. “New office” means an organization, which has been doing business in the United States through a parent, branch, affiliate, or subsidiary for less than one year.
Requirements for opening new office in the U.S. vary based on the type of employee that will be transferred to the U.S. office (manager, executive or employee with specialized knowledge).
How Much Do You Have to Invest to Open a New Office?
There is no minimum requirement provided by law. The original investment must be in the amount that is recommended for the particular industry.
Period of Stay With New Office
The duration of stay for qualifying employees that come to open a new office or be employed in new office is 1 year. The L1 visa can be extended for another 3 years if foreign company shows that it satisfies requirements of Doing Business Requirement.
Manager and Executive
If the employee is relocating to the U.S. in managerial or executive capacity to open a new office or to be employed in a new office, foreign company must demonstrate following:
- That sufficient physical premises to house the new office have been secured;
- That the employee was employed for one continuous year in the three-year period preceding the filing of the petition in an executive or managerial capacity and that the proposed employment involves executive or managerial authority over the new U.S. office; and
- That the intended U.S. office, within one year of approval of the petition, will support an executive or managerial position.
While it is expected that a manager or executive in a new office will be more than normally involved in day-to-day operations during the initial phases of the business, he or she must also have authority and plans to hire staff and have wide latitude in making decisions about the goals and management of the organization.
Position Requiring Specialized knowledge
If the employee is relocating to the U.S. in a capacity that requires specialized knowledge to open a new office or to be employed in a new office, foreign company must demonstrate that:
- Sufficient physical premises to house the new office have been secured;
- The U.S. company and foreign company have or will have a qualifying relationship; and
Foreign company has the financial ability to remunerate the employee and to commence doing business in the United States.
The information herein has been taken from our partner’s website https://myusaimmigration.com