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L-1 visas are available to persons who have worked abroad for one (1) continuous year within the preceding three (3) years on a full-time basis for a qualifying foreign business entity in an executive, managerial or specialized knowledge capacity, and who are being transferred temporarily to the United States to work for a subsidiary or affiliate business entity in an executive, managerial or specialized knowledge capacity.
Spouses and dependent children may be issued L-D status and will be permitted to accompany the principal applicant to the United States. Under recent legislation, the spouse of an L-1 visa holder may now apply independently for his or her own “open marker” Employment Authorization upon arrival in the United States.
L-1A visas are issued to persons working in an "executive" or "managerial" capacity.The term "executive capacity" is generally defined as an assignment in the organization in which the employee primarily:
- directs the management of the organization or major component or function of the organization;
- establishes the goals and policies of the organization, component or function;
- exercises wide latitude in discretionary decision-making; and
- receives only general supervision or direction from higher level executives, the directors or shareholders of the organization.
- manages the organization or a department, function, or component thereof;
- supervises and controls the work of supervisory, professional or other managerial employees;
- has the authority to hire and fire or recommend those and other personnel actions if other employees are supervised; if no other employees are supervised, functions at a senior level in the organization; and
- exercises discretion over the daily operations of the activity or function for which the employee has authority.
"Special knowledge possessed by an individual of the petitioning 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."
L-1B visas are issued to persons working in a "specialized knowledge" capacity.
L-1A visas for managers or executives are valid for a total period of seven (7) years from the date of issuance. This period may be extended if one resides in and commutes from Canada or Mexico to the United States for employment.
L-1B visas for workers with specialized knowledge are valid for a total period of five (5) years. Again, if one is a commuter, this period may be extended.
Those persons holding L-1A status generally qualify for the Multi-national Manager or Executive exemption from the Labor Certification process under Section 203(b)(1)(c) of the Immigration & Nationality Act. This exemption is important as it effectively shaves up to two (2) years off of the average I-140 Immigrant Petition (Green Card) processing time by eliminating the need for Labor Certification of the offer of employment. In most cases, L-1A Managers or Executives will receive approval of their I-140 Immigrant Petition within three (3) months of filing.
Those persons holding L-1B status must first obtain Labor Certification prior to filing an I-140 Immigrant Petition (Green Card). The typical Green Card processing time frame for L-1B holders is therefore much longer than for L-1A holders.
Both L-1A and L-1B visa holders may properly file for permanent resident alien status notwithstanding the fact that they hold non-immigrant status as the INS recognizes the doctrine of "dual intent" in L-1 cases. This doctrine makes it unnecessary for L-1 visa holders to continue to maintain permanent foreign residence or otherwise maintain ties with their home countries.
The Immigration & Nationality Act provisions concerning L-1 intra-company transfer visas render the following types of businesses eligible for L-1 qualification:
- Corporations
- Partnerships
- Sole proprietorships
The foreign business entity must have been in operation for at least one (1) year and the employee who will be transferred must have worked for that business for at least one (1) year in the preceding three (3) years as well.
The U.S. business entity to which the employee will be transferred must be a "subsidiary" or "affiliate" of the foreign entity. The INS employs a strict legal test to determine whether the U.S. and foreign business entities have a qualifying L-1 relationship. Legal advice is advisable to determine whether the requisite qualifying relationship
exists.
In addition, there must continue to be a viable, operating business abroad throughout the transferred employee's stay in the United States. In other words, the foreign business entity must continue to operate during the entire period of the alien's L-1 status. At least one employee must remain abroad to ensure the continued viability of the foreign operation.
Our team typically requires one (1) to two (2) weeks to prepare an L-1 petition once we have received all supporting documentation from both the U.S. and foreign employer. Once assembled, the petition may be filed with the BCIS Service Center having jurisdiction over the place of intended employment. While individual Service Center processing times do vary, the average processing time for an L-1 petition is between ninety (90) and one hundred fifty (150) days.
Alternatively, citizens of Canada are eligible to apply for L-1 status in person at a Class A port of entry pursuant to the provisions of the North American Free Trade Agreement. In these cases, processing is generally conducted on the date of attendance at the port of entry.
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