INTRA COMPANY TRANSFERS (L-1A, L-1b visas)
|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..)
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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 L-1 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 in less than a few months. 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.
Often the E-2 or E-1 visa category is an alternative to the L-1 category. Deciding which option to take can only really be made after a thorough case analysis by an experienced immigration attorney
1. What are the basic requirements?
2. How do you qualify as an L-1A manager?
3. How do you qualify as an L-1A executive
4. What is 'Specialized Knowledge'?
5. Are L-1 visas only for certain types of business?
6. Are L-1s available for new US based start-up businesses?
7. Is there a requirement that the companies have a certain number of employees?
8. Does an L-1 lead to a 'Green card'?
9. Can accompanying souses and children work and go to school?
10. How long are L-1 visas valid for?
L-1 Basic Requirements
You qualify for an L-1 visa if you have been employed [note you must be actually 'employed', normally subcontractors cannot get L-1 status] outside the U.S. as a manager, executive or person with specialized knowledge for at least 12 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 twelve 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 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.
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.
There is no restriction on the type of business activity for the L-1 scenario
L-1s are not restricted to any type of business activity. It is not even a requirement that the overseas and US based businesses be in the same business field. An overseas business can start up, acquire or otherwise operate a totally different type of business and still qualify. For example an overseas software development company could form a subsidiary in the US to operate a restaurant and bar and still qualify.
L-1 visas for 'start-up' businesses
Frequently when an overseas company wishes to establish a new subsidiary or branch in the US they also wish to send over an experienced manger or person with specialized knowledge to manage the start up operations. At least initially the new venture will often have no US based employees no business activity. In this case, when a US based subsidiary or branch has been operating for less than 12 months, the US Immigration Service will issue a 12 month start-up L1 visa, and which will be renewed after this 12 month period upon te company showing that it has made significant progress in its start up plans, and often has by that time employed at least one US citizen and made significant sales.
Is there a requirement that the companies have a certain number of employees?
An often posed question, there is no actual requirement that a manager have to direct employees to obtain an L-1 visa. The regulations specifically state that it is enough that a Manager direct a 'function' of the business.
In practice however, it is difficult to obtain L-1 status, except in a start up scenario, if the overseas and US business do not have nay employees. Normally to be considered a manager or executive, the applicant must be in a position where he will be directing other professional or managerial staff.
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.
The duration of L1 status
L-1a can be extended up to a maximum of seven years in total, L-1b status can be held for up to five years. After these time limits, the applicant is required to leave the US for at least one year before they cna be readmitted in L status.
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.
FOR AN INITIAL FREE CONSULTATION CALL:
Tel: In the US (760) 231-9851
In the UK call 0207-101-9399 email: email@example.com