L 1: INTRACOMPANY TRANSFEREE

The L‑1 (intracompany transferee) visa is the most commonly used visa to accomplish the transfer of key employees among an international group of companies. In most instances, qualified persons can obtain their visa within two (2) months after their employer files a complete petition with the U.S. Citizenship and Immigration Services (the “CIS”).

To qualify for an L‑1 visa, one must be transferring from an overseas company to a properly related U.S. company. The individual must have served in either an executive, managerial or specialized knowledge capacity with the overseas company and must be transferring to the U.S. company to serve in one of these specified capacities. The U.S. company and the overseas company must be related by at least 50% common ownership and/or control. The transferee must have been employed by the overseas entity in a managerial, executive or specialized knowledge capacity for at least one (1) year within the preceding three (3) years prior to the transfer; further, any time spent in the U.S. prior to the transfer does not count toward (but does not interrupt) the required one (1) year of employment.

The following definitions of executive and managerial capacity and specialized knowledge are critical to eligibility for this visa:

Executive capacity ‑ an assignment within an organization in which the employee primarily directs the management of the organization or a major component or function of the organization, establishes organizational goals and policies, exercises wide latitude in discretionary decision making and receives only general supervision from higher level executives, the board of directors or the stockholders of the company. An executive will normally have managers who report to him.
Managerial capacity - an assignment within an organization in which the employee primarily manages the organization or a department, subdivision, function or component thereof; supervises and controls the work of other supervisory, professional or managerial employees or manages an essential function within the organization or a department or subdivision thereof if supervising employees, has the authority to hire and fire or recommend such (and other personnel) actions; if not supervising employees, serves in a senior level within the organization with respect to the function managed; and exercises discretion over the day‑to‑day operations of the activity or function for which the employee has authority. A first‑line supervisor will not be considered a manager unless the employees supervised are professional or unless the first‑line supervisor manages an essential function.
Specialized knowledge ‑ particular knowledge possessed by an individual of the organization’s product, service, research, equipment, techniques, management or other interests and its application in international markets, or an advanced level of knowledge or expertise in the organization’s processes and procedures. Specialized knowledge is not widely known, even within the company. A high level of experience or technique in the operation of industrial equipment, i.e., the knowledge of a skilled employee, is not necessarily specialized knowledge.

The U.S. employer normally files the initial L‑1 petition with the appropriate CIS Service Center in the U.S. The only exception to this filing procedure is for Canadian citizens, for whom the petition may be filed at the same time as the individual’s application for admission to the U.S. at a Class A port of entry. Numerous documents must be submitted to substantiate that the company and the employee qualify for L‑1 status. Once approval is granted by the CIS, the transferring employee, his spouse and minor children (under the age of 21) apply for L‑1 and L‑2 visas, respectively, at a U.S. Consulate or Embassy. Spouses and children admitted to the U.S. under L‑2 visas are not authorized to work in the U.S. but spouses may apply for employment authorization upon arrival, which is generally granted approximately three (3) months after the application is filed. Again, Canadian citizens are visa‑exempt and are not required to apply for visas at a U.S. Consulate.

Initial admission to the U.S. for L‑1 managers, executives and specialized knowledge employees, except those entering the U.S. to be employed at a “new office” (discussed below), may be admitted for a maximum period of three (3) years. Extensions of stay in increments of two (2) years may be granted. Managers and executives may remain in the U.S. in L‑1 status for up to seven (7) years. Specialized knowledge employees may remain in the U.S. in L‑1 status for five (5) years. Spouses and minor children are entitled to remain in the U.S. for the same period as the principal.

An organization which has been doing business in the U.S. for less than one (1) year is considered a “new office” for L‑1 visa purposes. Petitions approved on behalf of managers and executives to be employed at new offices will be valid for only one (1) year, during which time the company is expected to grow. Prior to the conclusion of the first year, the U.S. company and the employee must petition to secure additional time in L‑1 status. At the time the petition and application for extension are filed, the company and employee must establish that the employee qualifies as a “true” executive or manager (i.e. the start‑up company has shown sufficient growth to support an executive or manager). Failure to show an increase in factors such as gross income and staffing levels may result in a denial of the extension request.

An L-1 Blanket petition is a procedure through which a very large company may pre-qualify to transfer its L-1 employees. Once the L-1 Blanket is approved, the company may transfer executive/managerial and specialized knowledge employees to the U.S. on L-1 visa without having to file a separate petition for each employee with CIS. A company may qualify for an L-1 Blanket if it meets one or more of the following requirements: the U.S. company has at least 1,000 employees; the U.S. company has obtained L-1 visas for at least ten of its employees during the previous 12 months; and/or the U.S. company and related U.S. companies have combined annual sales of at least $25 million. The procedure for includes filing a petition for the U.S. company with CIS and once that petition is approved, each employee is eligible to appear directly at the U.S. Consulate in their home country to apply for the visa to enter the U.S.