The L visa classification enables a U.S. employer to transfer either an executive or manager (L-1 (A)) or a specialized knowledge worker (L-1 (B)) from one of its affiliated foreign offices to one of its offices in the United States.
General Qualifications of the Employer:
To qualify for L-1 classification, the employer must:
- Have a qualifying relationship with a foreign company (called qualifying organization, such as parent company, branch, subsidiary or affiliate), and
- Currently be, or will be, doing business as an employer in the U.S. and in at least one other country for the duration of the beneficiary’s stay in the U.S. as an L-1.
“Doing business” means the regular, systematic and continuous provision of goods and/or services by a qualifying organization and does not include the mere presence of an agent or office of the qualifying organization in the U.S. and abroad. Both U.S. and foreign company must be active.
Even less than majority ownership would be sufficient to qualify relationship as subsidiary or affiliate if the parent or owner can show control. A contractual joint venture, however, does not qualify as a subsidiary.
Qualifications of the Employee:
Executive capacity generally refers to the employee’s ability primarily to:
- Direct the management of the organization or a major component or function,
- Establish goals and policies,
- Exercise wide latitude in discretionary decision making, and
- Receive only general supervision or direction from higher level executives, board of directors or stockholders.
Managerial capacity generally refers to the ability of the employee to supervise and control the work of professional employees and to manage the organization, or a department, subdivision, essential function or component of the organization. A manager has an authority to hire and fire or recommend personnel actions, and exercises discretion over day-to-day operations of the activity or function.
First-line supervisors are not considered managers unless the employees they supervise are professionals.
A person may be a “functional” manager even if he is the sole employee of the company, where he utilizes outside independent contractors or where business is complex.
- Specialized Knowledge Worker
Specialized knowledge means either 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. A specialized knowledge worker does not simply a skilled worker, rather someone whose advanced level of expertise and proprietary knowledge of the employer organization’s product, service, research, equipment, techniques, management or other activity which is not readily available in the U.S. labor market.
A new office is defined as “an organization which has been doing business in the U.S. through a parent, branch, affiliate or subsidiary for less than one year.” To qualify for a new office L-1, the petitioner must submit evidence that:
- It has secured sufficient physical premises to house the new office;
- The employee has been employed as an executive or manager for one continuous year in the three years preceding the filing of the L-1 visa petition; and
- The intended U.S. operation within one year will support an executive or managerial position.
Because the new office must be doing business, the mere presence of an agent or office is not enough.
A new office L-1 visa petition may be approved for only one year. Thereafter it may be extended upon presentation of evidence that the business is active and operating. To determine extension after the first year, the USCIS looks to: (a) the number of employees, (b) significant growth in cash flow, (c) presence of significant customers and clientele, or (d) similar elements.
Period of Stay:
Except for a new office L-1, all other qualified employees will be allowed a maximum initial stay of three years. Whereas all L-1 (A) employees (executives or managers) can extend up to seven years in two-year increments, all L-1 (B) employees can extend only to five years.
Spouse and Unmarried Children of an L-1:
An L-1 employee’s spouse and unmarried minor children may seek admission in L-2 visa classification, and generally will be granted the same period of stay as the L-1. If the five or seven year limitation is not reached, an L-2 may remain in the U.S. even if the L-1 departs.
Spouses of L-1 may apply for work authorization, and once approved, there is no specific restriction as to where the L-2 spouse may work.
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