What are the options for companies to qualify for the L-1A and L-1B Visa?
To qualify for L-1 status, the foreign (non U.S.) company for which the L-1 employee works must have a specific relationship to the prospective employer (petitioner) in the United States. The two companies must have common control.
In relation to the foreign (non U.S.) company, the petitioner (U.S. Company) must be one of the following:
Parent or subsidiary. USCIS recognizes four distinct business structures as subsidiaries. The common element in all four cases is control by the parent company of both the alien employee’s foreign employer and future U.S. employer.
1) Any legal entity of which a parent company owns, directly or indirectly, more than 50% and controls the entity.
2) A business owned 50% by a parent company with control of the entity.
3) A 50-50 joint venture directly or indirectly owned 50% by the parent company and equally controlled by the parent company, in which the parent company has veto power.
4) Any entity of which, directly or indirectly, a parent company owns less than 50% but over which the parent company exercises actual control.
Affiliate (includes partnerships organized in the U.S.). An affiliate is really a type of subsidiary. L-1 affiliates are usually either:
1) One of two subsidiaries of a common parent.
2) One of two entities owned by a common group of individuals. Each owner must own approximately the same share of each entity.
50-50 joint venture. Must be directly or indirectly owned 50% by the parent company and equally controlled by the parent company, in which the parent company has veto power.
Branch. Any office or division of the same organization located in another country is considered to be a branch.
What is the L-1A Visa?
The L-1A Visa is for Executives and Managers.
To qualify as an executive, the alien employee’s primary functions should have included direction of the management of the entire organization or one of its major components.
The employee must have had broad discretion in decision making and have been subject to only general supervision by supervision by superiors.
Employees actually involved in the production of goods or services are not eligible. The employee must have supervised some staff. Executive capacity does not include those who perform high-level but personnel-remote functions.
An executive does not necessarily have to manage a large number, or tiers of employees. This fits into the description of manager.
“Managerial” describes a position in which the alien employee directs the organization, a department, or a subdivision. The manager must have the authority to control, direct, hire, and fire other employees. He or she must have discretion over day-to-day operations.
The law excludes first-line supervisors, except for those in charge of professional-level workers. It excludes employees primarily responsible for production of goods or provision of services. The general rule is that a manager must direct other managers or supervisory-level personnel. If this requirement presents a problem, one alternative is to show that the manager supervises people who have specialized degrees at the bachelor’s level, required for their jobs.
Managers no longer need supervise layers of people if they are functional managers.
A functional manager is a person who is a senior person within the organization and/or who manages an essential function. These functional managers need not manage a department with employees. They may manage a function.
How can L-1A Visa holders apply for a green card (permanent residence)?
A benefit of being on an L-1A visa is the ability to apply for a Green Card (Permanent Residence), without going through the process of Labor Certification, after only one year in L-1A status.
However if you were a manager or executive with the overseas branch for one year, you do not have to be in L-1A status for 1 year to apply for the multinational executive green card unless you are starting a new company in the U.S.
What is the L-1B Visa?
The L-1B Visa is for specialized knowledge employees. L-1B visa applicants must have specialized knowledge of the company’s products or procedures.
Specialized-knowledge employees must have a detailed understanding of the company’s products / services and the international markets for those products / services, OR they have advanced knowledge of company processes and procedures.
It must be knowledge that can be obtained only through experience with that employer, such as experience with proprietary software or methodologies unique to the company, which is also important to the competitiveness of the company.
Knowledge which is widely held or related to common practices or techniques and which is readily available in the United States job market is not specialized for purposes of L classification.
The level of knowledge required and the employment of the specific alien must directly relate to the proprietary interest of the petitioner. To be proprietary, the knowledge must relate to something which relates exclusively to the petitioner’s business.
USCIS has identified the following characteristics of an employee with specialized knowledge, all of which should be present to ensure success. The L-1B beneficiary must:
1) Have knowledge that is valuable to the employer’s competitiveness in the marketplace.
2) Be especially qualified to contribute to the U.S. employer’s knowledge of foreign operation conditions.
3) Have been a key employee somewhere other than in the United States, with significant assignments that have enhanced the employer’s productivity, competitiveness, image, or financial position.
4) Have special knowledge that can usually be gained through extensive prior experience with the employer.
I am the President of a foreign (non U.S.) company. Can I open a U.S. subsidiary of my foreign based company and apply for an L-1A visa for myself?
Yes you can. The USCIS will initially approve your L-1A Visa for a period of one year. It can be renewed twice, 3 years at a time, for a total of 7 years. The USCIS will want to see evidence of a business plan including financial projections for both the U.S. subsidiary and the foreign parent company.
The L beneficiary who is coming to the United States to open a new office may be classified as a manager or executive during the one year required to reach the “doing business” standard if the factors surrounding the establishment of the proposed organization are such that it can be expected that the organization will, within one year, support a managerial or executive position.
The factors to be considered include amount of investment, intended personnel structure, product or service to be provided, physical premises, and viability of the foreign operation.
It is expected that a manager or executive who is required to open a new business or office will be more actively involved in day-to-day operations during the initial phases of the business, but must also have authority and plans to hire staff and have wide latitude in making decisions about the goals and management of the organization.
What documentation must I show to obtain the L-1A Visa for 1 year to open my branch office in the US?
Sufficient physical premises to house the new office have been secured (a lease for office space);
The beneficiary has been 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 operation (copy of foreign tax return);
Proof that the intended United States operation, within one year of the approval of the petition, will support an executive or managerial position (business plan);
The proposed nature of the office describing the scope of the entity, its organizational structure, and its financial goals (business plan);
The size of the United States investment (business plan);
The financial ability of the foreign entity to remunerate the beneficiary and to commence doing business in the United States (copies of foreign company bank statements);
The organizational structure of the foreign entity (organizational chart).
How much capital does the law require that I have for our new U.S. subsidiary?
Can my spouse and children work in the U.S. on the L-2 visa?
The L-2 spouse of an L-1 visa holder can obtain a general Employment Authorization. This employment authorization must be applied for separately using form I-765. Eligibility under 8 CFR 274a.12 is (A)(1)(8). The L-2 child is not permitted to work.
How does the petitioner (U.S. Company) prove the ownership relationship?
The shareholders’ register is the best way to show ownership, since it shows all outstanding shares. The shareholders’ register should be in the corporate Minute book. The updated shareholders’ register should be provided for each company in the ownership chain.