Moore & Van Allen Law Firm, Attorneys

L 1: INTRACOMPANY TRANSFEREE

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L 1: INTRACOMPANY TRANSFEREE

The L‑1 Intracompany Transferee visa is for the transfer of foreign employees to the U.S. within an international group of companies. The L-1A visa is specifically for managers and executives and the L-1B visa is for specialized knowledge employees. To qualify for the L‑1 visa, the U.S. company and the overseas company must be related by at least 50% common ownership and/or control.

The employee must be transferring to a properly related U.S. company from an overseas company. Also, the applicant must have been employed in an executive, managerial or specialized knowledge capacity with the overseas company for at least 12 months and must be transferring to the U.S. company to serve in one of these specified capacities. 

As mentioned, the L-1 applicant must have been employed by the overseas entity in a managerial, executive or specialized knowledge capacity for at least one (1) year. This employment must have taken place within the preceding three (3) years prior to the transfer and 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.
  • 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. 
  • 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 L-1 petition process usually requires filing an I-129 Nonimmigrant Worker Petition with the appropriate USCIS Service Center. With the I-129, documents must be submitted to substantiate that the company has the qualifying corporate relationship and the employee meets qualification for L‑1 status. Processing times vary depending upon the Service’s caseload, but it generally takes several months for a petition to be adjudicated. For petitioners seeking an expedited adjudication, premium 15-day processing may be requested for an additional fee of $1225.00.

Upon approval, if the applicant is outside the U.S., s/he can then apply for an L-1 visa at the appropriate U.S. Consulate. If the applicant is in the U.S. (either in another valid visa status or seeking an extension of status), an approval notice showing the change or extension of nonimmigrant status would be issued. 

An individual may not remain in the U.S. in L-1A status for more than an aggregate period of 7 years or in L-1B status for more than an aggregate period of 5 years. An L-1 petition can be approved for a maximum initial period of stay of 3 years, and an extension of stay may be
authorized in increments of no more than 2 years.

Family members of L visa holders (specifically spouses and children under age 21) may be granted L-2 dependent visas to accompany the worker to the U.S. While dependent children are not eligible to work in the U.S. pursuant to this status, L-2 dependent spouses are eligible to apply for work authorization once they arrive in the U.S.

There are a few exceptions to the I-129 petition filing procedures for individual L-1 applicants:

  • Canadian citizens: As they are not required to apply for a visa at a U.S. Consulate, Canadian citizens can appear at Class A port of entry, a U.S. airport handling international traffic or a U.S. pre‑flight inspection station and submit the L-1 petition directly to the Free Trade Officer at U.S. Customs and Border Protection. The officer will make an adjudication immediately, in advance of the applicant’s admission to the U.S.
  • Blanket Petition: A pre-approved “Blanket” L-1 petition allows very large companies to pre-qualify to transfer its L-1 employees. To qualify for an L-1 Blanket issuance, a U.S. company must meet one of the following: have at least 1,000 employees; have obtained L-1 visas for at least 10 employees during the previous 12 months; and/or the company and other related U.S. companies have combined annual sales of at least $25 million. Blanket approval is obtained with the filing of an I-129 petition with USCIS on behalf of the company. Approval is usually granted for validity of 3 years initially, and subsequent petitions to renew the blanket petition can be approved for “indefinite” validity at USCIS’s discretion. Once the approval is issued, the U.S. company may use the blanket approval for future L-1 employees, who can go directly to the U.S. Consulate in their home country to apply for an L-1 visa and avoid an individual I-129 filing.
  • New office: A company that 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 must petition for the applicant to secure an extension of L‑1 status. When the extension petition is 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.