1. L-1 Visa and Blanket L-1 Visa
An L-1 visa holder is a foreign national who has worked abroad for at least one year out of the three years immediately prior to entry to the United States as a manager, executive, or specialized knowledge employee of a foreign affiliate of a U.S. company, and who will be transferred to the U.S. affiliate to work in a similar position.
L-1 managers also include function managers, meaning people who oversee production or a function instead of personnel. The specialized knowledge subcategory aims to facilitate transfer of high level technical staff. The L-1 category, if applicable, is the best category to use, as it does not involve U.S. Department of Labor at all.
Further, blanket L-1 visa authorization is an attractive option for big companies transferring managers, executives or specialized knowledge personnel. A blanket L visa petition enables a company to file once with the USCIS. Following approval, foreign personnel may simply appear at an embassy without prior application or appointment, bearing a copy of the L-1 blanket approval and a job letter and obtain an L-1 visa.
2. The Qualifications for an L-1 Visa
The job held with the non-US company must fit the definitions of a manager, executive, or person with specialized knowledge. What does that mean, in immigration law language? The immigration-law definitions of manager, executive, and specialized knowledge are more restricted than their everyday, dictionary meanings.
To qualify for an L-1 visa, the foreign national must have worked outside of the United States for an employer for at least one year within the three years prior to transferring to the United States. The employment abroad must have been as an executive or manager for an L-1A visa, or require specialized knowledge about the company's products, procedures or methods for the L-1B visa. The foreign citizen must be transferred to work for the same employer in the United States, or a parent, subsidiary or affiliate company. The L-1 foreign national must establish that he or she has:
worked for at least twelve months prior to transfer for the foreign affiliate as an executive, manager or specialized knowledge employee; and
will work in a similar capacity in the United States.
An L-1 is an alien coming temporarily to perform services in a managerial or executive capacity, for the same corporation or firm, or for the branch, subsidiary or affiliate of the employer which employed him or her abroad, in an executive, managerial or specialized knowledge capacity. The employment abroad must have been as an executive or manager for an L-1A visa, or require specialized knowledge about the company's products, procedures or methods for the L-1B visa. The foreign citizen must be transferred to work for the same employer in the United States, or a parent, subsidiary or affiliate company.
The requirement of L1 is that the intra-company transferee must have been employed in a qualifying company abroad in a managerial, executive capacity, or as a person with specialized knowledge, for at least one year within the past three years. The regulatory authority for the L1 visa is found in 8 C.F.R. Section 214.2(1). These regulations state that an alien who is eligible to receive an L1 intra-company transfer visa must meet the statutory requirements of the Immigration and Nationality Acts, which define a qualified alien as:
a person who has worked abroad for one continuous year within the preceding three years in an executive, managerial, or specialized knowledge capacity for a qualifying, related business entity and who is being transferred temporarily to work in the United States to work in a executive, managerial, or specialized knowledge capacity for a qualifying related business entity.
Three positions, a manager, an executive, and a person with specialized knowledge, are considered employable by the USCIS, on the condition that the U.S. employer, which functions as the petitioner, meet the obligations of a qualifying organization. By working for a qualifying organization abroad for an entire year during the preceding three years, an alien can apply for a L1 intra-company transfer visa.
In addition, the foreign firm and the U.S. firm must have a qualifying relationship. The foreign company may be a parent, affiliate, or subsidiary of the prospective U.S. employer. The U.S. and the foreign firm must have common majority ownership or common control by the same persons or entities. The employer may include corporations, non-profits, religious or charitable organizations. Furthermore, the foreign national must be coming to work as an executive, manager, or employee with specialized knowledge.
In order to qualify, the foreign national must establish that he/she has worked in an executive, managerial or specialized knowledge capacity abroad. He/she must also establish to enter the United States to work for the same company or a parent, affiliate or subsidiary thereof, in an executive, managerial or specialized knowledge capacity, as defined in the following.
3. The L-1A Visa for Intra-Company Transfer of Executives and Managers
L-1A is a nonimmigrant visa category designed for the intra-company transfer of executives and managers in multinational companies to the United States. The L-1A visa is a nonimmigrant visa which gives the visa holder temporary work authorization. Also, holding an L-1A visa is considered to be probative of eligibility for an EB1-Multinational Executives and Managers Green Card petition.
1) there must be a qualifying relationship between the U.S. petitioning company where the applicant will work and the foreign company where the applicant has worked;
2) the transferee must hold a managerial or executive level position before and after being transferred;
3) the transferee must have worked for the foreign entity continuously for at least one of the past three years.
The L-1A visa is one of the most popular vehicles by which the owners of foreign businesses can obtain permanent status in the United States by expanding operations to the United States. The process is carried out in three steps:
First, the initial L-1A visa is issued for a period of one year to set up operations of the new U.S. branch;
Second, the L-1A visa must be renewed based in part on the first-year record of the U.S. branch;
Third, once renewed, for an additional 2 years, the L-1A visa holder may apply for U.S. Permanent Residency with the support of the U.S. branch.
4. The Definition of Executive Capacity
The definition of "Executive Capacity" requires the executive to primarily direct the management of the organization or a major component or function. Executive capacity means an assignment within an organization in which the employee primarily
(a) directs the management of the organization or a major component or function of the organization;
(b) establishes the goals and policies of the organization, component or function;
(c) exercises wide latitude in discretionary decision-making; and
(d) receives only general supervision or direction from higher level executives, the board of directors or stockholders of the organization.
An executive coming to work for a U.S. office that has been in operation for at least one year may also qualify for a Green Card as a priority worker (EB1-C).
5. The Definition of Managerial Capacity
The definition of "Managerial Capacity" specifically provides that the manager of an essential function needs not supervise any other employee in order to be eligible for L-1A classification. However, the manager must primarily perform managerial functions as well as function at a senior level, within the organizational hierarchy with respect to the function managed and exercise discretion, over the day-to-day operations of the function.
Managerial capacity means an assignment within an organization in which the employee primarily:
(a) manages the organization, or a department, subdivision, function or component of the organization;
(b) 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 of the organization;
(c) has the authority to hire and fire or recommend those as well as other personnel actions (such as promotion and leave authorization), if another employee or other employees are directly supervised; if no other employee is directly supervised, functions at a senior level within the organizational hierarchy or with respect to the function managed;
(d) exercises discretion over the day-to-day operations of the activity or function for which the employee has authority. A first-line supervisor is not considered to be acting in a managerial capacity merely by virtue of the supervisor's supervisory duties unless the employees supervised are professional.
This definition can be difficult to apply in the case of first-line supervisors – that is, lower-management personnel who directly oversee non-management workers. A first-line supervisor is not normally considered a manager; but the opposite may be found if the employees being supervised are at a professional level. The meaning of professional is a worker holding a university degree in a field related to his or her occupation. A manager coming to work for a U.S. office that has been in operation for at least one year may also qualify for a Green Card as a priority worker (EB1-C).
6. The L-1B Visa for Aliens with Specialized knowledge
The term specialized knowledge refers to the employee's understanding of the employer company, including its products, services, research, equipment, techniques, management or other interests and its application in international markets, or advanced knowledge of the company's processes and procedures. USCIS and consular officers will be looking for knowledge that is not widely held throughout the industry, but is truly specialized. They will also be looking to see that such knowledge is not readily available within the United States.
The issue for L-1B visa application or extension is whether the petitioner has established that the beneficiary's position in the United States will involve specialized knowledge as required by the regulation. Section 214(c)(2)(B) of the Immigration Act provides the following:
For purposes of section 101(a)(15)(L), an alien is considered to be serving in a capacity involving specialized knowledge with respect to a company, if the alien has special knowledge of the company product and its application in international markets, or has an advanced level of knowledge of processes and procedures of the company.
Furthermore, the regulation defined specialized knowledge as:
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 or procedures.
The petitioners requesting L-1B classification for an employee are usually faced with having to establish that the beneficiary possesses specialized knowledge, and the employee is coming to the United States to continue to render services requiring that specialized knowledge. A beneficiary is considered to be serving in a capacity involving specialized knowledge if he or she has a special knowledge of the company product and its application in international markets, or has an advanced level of knowledge of processes and procedures of the company.
The USCIS has implemented the L-1 Visa Reform Act of 2004. The law was passed in December 2004 as part of the Omnibus Appropriations Act for Fiscal Year 2005. Changes in the legislation were primarily aimed at restricting contract placement of L-1B workers through agreements between the L-1 sponsoring employers and unrelated third-party worksite employers. The restrictions on offsite placement apply to L-1B petitions only, including any L-1B extensions.
These changes are important for all L-1B employers and employees. They should be prepared to document compliance with the requirements explained below, both in connection with L-1B petition filings as well as with L-1B visa requests at the consulate. They should expect higher levels of scrutiny in these applications and should plan accordingly.
7. L1B Visa Worker's Specialized Knowledge and USCIS' Restrictions
The L-1B nonimmigrant visa enables a U.S. employer to transfer a professional employee with specialized knowledge relating to the company’s interests from its foreign offices to one of its offices in the U.S. The L1B visa enables a foreign company which does not yet have an affiliated U.S. office to send a specialized knowledge employee to U.S. to help establish one. The employer must file Form I-129, Petition for a Nonimmigrant Worker with fee, on behalf of the employee.
Specialized knowledge means either special knowledge possessed by an foreign 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.
If the L-1B visa holder will work at employer's client site, the L1B worker should be supervised by a person from the L1B-sponsoring employer, the restriction may apply if the L1B beneficiaries are not doing work that requires specialized knowledge. For example, if a company primarily contracts out employees to various projects that do not require the specialized knowledge possessed by the L1B beneficiary, the L1B petition may not be approved.
Thus, the L1B is not always available as an alternative to the H1B visa. These restrictions are designed to eliminate the practice of characterizing workers as L1B specialized-knowledge workers, when their work could have been performed by workers without any particular experience or familiarity with the company or its products.
8. Restrictions on Offsite Work and the Specialized Knowledge Work Allows Offsite Placement
The L-1B Visa Reform Act prohibits the L-1B employee from working primarily at a location other than the petitioning employer's physical location in two situations:
1) The first prohibited situation is one in which the individual's work is controlled and supervised by a different employer.
2) The second is where the arrangement is in the nature of providing local labor to an employer other than the petitioner, rather than a service that is related to the required specialized knowledge regarding the petitioning employer.
The required control and supervision of the L-1B worker are interpreted by ultimate authority over that worker. The bar to offsite placement does not apply if the offsite work could not be performed without the specialized knowledge of the petitioning employer's product, service, or operations, as defined by regulation. This knowledge must be beyond ordinary job skills.The L-1 Visa Reform Act also reinstates the requirement that all L-1 employees work for the qualifying foreign employer for one year out of the past three years, prior to coming to the U.S. on L-1 status. This rule had previously been reduced to six months for employees covered by a blanket L-1 approval.
9. The Fees for L-1 Visa or Status Application
Each of these fees is in addition to the base processing fee to file a Petition for a Nonimmigrant Worker (Form I-129) and any premium processing fees, if applicable.
1) The base filing fee: There is a base filing fee for Form I-129 petition.
2) Fraud Prevention and Detection fee for H-1B and L-1Petitions: A petitioner seeking initial approval of H-1B or L-1 nonimmigrant status for a beneficiary, or seeking approval to employ an H-1B or L-1 nonimmigrant currently working for another petitioner, must submit a $500 Fraud Prevention and Detection fee. Other than petitions to amend or extend stay filed by an existing H-1B employer, there are no exemptions from the $500 fee.
3) Additional fee H-1B and L-1 petitions filed by companies that meet certain requirements: A law has passed in U.S. Comgress to increase the an already high filing fee for H-1B visa and L-1 visa petitions filed by companies that meet certain requirements, the subject employers must pay the increased fee of $4,000 for all new H-1B employees (increased from $2,000), and $4,500 for all new L-1A and L-1B employees (increased from $2,250).
Only companies with fifty (50) employees or more in the U.S., at least 50 percent of whom are in H-1B status or L-1 status, are subject to the fee of $4,000 for H-1B, or $4,500 for L-1. If a company has fewer than 50 employees in the U.S., or if company's combined total of H-1B and L-1 workers is less than 50 percent of its total U.S. workforce, this fee does not apply.The following petitioners must submit the additional fees with an H-1B or L-1 petition filed: (a) Initially to grant status to a nonimmigrant status of H-1B or L-1, or (b) To obtain authorization for a nonimmigrant in such status to change employers.
This fee is in addition to the a) Base Processing Fee, b) Fraud Prevention and Detection Fee, c) American Competitiveness and Workforce Improvement Act of 1998 fee (when required), as well as d) the premium processing fee, if applicable.
Subject employers do not need to include the $4,000 or $4,500 fee each time an H-1B visa or L-1 visa petition is filed to USCIS. An employer generally is required to pay the fee only one time for such employee. It is important for employers to properly assess filing fee requirements. H-1B or L-1 petitions filed without the correct filing fees may be rejected directly.
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