L1 INTRA COMPANY TRANSFEREES
Capp and Marsh attorneys (888) 558 6275
In General
The L-1 visa enables an overseas company to transfer key managers and personnel to run a US based subsidiary or affiliate. It can also be used to transfer mangers and key personnel to start up a newly formed US subsidiary or affiliate, although proof that the US operation has been constituted will be required (signed business lease, documents of incorporation etc..)
Significantly the L-1 visa category is not restricted to operations of a certain size, nor is it required that the overseas and US entities engage in the same type of business.
A major advantage of the L1 is that under certain circumstances an L-1 holder may be able to later obtain a Green card without going through the exhaustive Labor certification process. Furthermore, the spouse of an L-1 visa holder can obtain work authorization during their stay in the US.
The L-1 visa can be obtained relatively quickly, often within 45 days. However, to guarantee approval or determination of the petition within 15 days the applicant can pay an additional $1000 filing fee for premium or expedited processing.
L1-Requirements
You qualify for an L-1 visa if
you have been employed outside the U.S. as a manager, executive or person with
specialized knowledge for at least six months out of the past three years, and you
are transferred to the U.S. to be employed in a similar position. The U.S.
company to which you are transferring must be a branch, subsidiary, affiliate
or joint venture partner of your non-US. employer. The non-US. company must
remain in operation while you have the L-1 visa. When we use the term 'non-US.
company' we mean only that it is physically located outside the U.S. Such a
company may well be a foreign division of an American-based business or it may
have originated in a country outside the U.S. Either one fits the definition
of non-US. company.
To get an L-1 visa, it is not necessary that either your non-US. or
prospective U.S. employer be operating in a particular business structure.
Many legal forms of doing business are acceptable, including, but not
restricted to, corporations, limited corporations, partnerships, joint
ventures and sole proprietorships.
Manager, Executive or Person With Specialized Knowledge
To be eligible for an L-1 visa, the job you hold with the non-US. company
must be that of manager, executive or person with specialized knowledge. You
must have worked in that position a total of at least six months out of the past
three years. For immigration purposes, the definitions of manager, executive
and specialized knowledge are more restricted than their everyday meanings.
a.
Managers
A manager is defined as a person who has all four of the following
characteristics:
| He or she manages the
organization or a department of the organization.
| He or she supervises and
controls the work of other supervisory, professional or managerial
employees or manages an essential function of the organization.
| He or she has the authority
to hire and fire those persons supervised. If none are supervised, the
manager must work at a senior level within the organization.
| He or she has the authority
to make decisions concerning the day-to-day operations of the portion of
the organization which he or she manages. | |
First-line supervisors are lower
management personnel who directly oversee non-management workers. A first-line
supervisor is not normally considered a manager unless the employees
supervised are professionals. The word "professional" here means a
worker holding a university degree.
A manager coming to work for a U.S. office that has been in operation for at
least one year also qualifies for a green card as a priority worker.
b.
Executives
An executive is defined as a person who has all four of the following
characteristics:
| He or she directs the
management of the organization or a major part of it.
| He or she sets the goals or
policies of the organization or a part of it.
| He or she has extensive
discretionary decision-making authority.
| He or she receives only
general supervision or direction from higher level executives, a board of
directors or the stockholders of the organization. | |
An executive coming to work for
a U.S. office that has been in operation for at least one year also qualifies
for a green card as a priority worker.
c.
Persons with Specialized Knowledge
The knowledge that is referred to in the term "specialized
knowledge" covers any knowledge that specifically concerns the employer
company, its procedures, products or international marketing methods.
Accompanying Relatives
When you qualify for an L-1 visa, your spouse and unmarried children under age
21 can get L-2 visas simply by providing proof of their family relationship to
you. L-2 visa spouses are also able to obtain work authorization during their
stay in the US.
Applying for a Green Card From L-1 Status
If you are eligible for or now have an L-1 visa as either a manager or an
executive, you may also be eligible for a green card through employment. In
addition to your eligibility, you also have the benefit of being able to get
the green card without going through the rigorous procedures of Labor
Certification, which is usually the first step required for those seeking
green cards through employment. The purpose of the Labor Certification
procedure is to show that there are no American workers available to take the
U.S. job that has been offered to you. However, if you qualify for L-1 status
as a manager or executive, you also fall under a green card preference
category called priority workers. This category is exempt from Labor
Certification requirements.