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Immigration Law
L-1 Intra Company Transfer Visa-Do You Qualify?
Browse: 2439       Date:04-16-2013     

Employees of an international company who are being temporarily transferred to a parent branch, affiliate, or subsidiary of the same company in the United States require Intra Company transfer (L-1) visas. The international company may be either a U.S. or foreign organization. To qualify, the employee must be at the managerial or executive level, or have specialized knowledge and be destined to a position within the U.S. company at either of these levels, although not necessarily in the same position as held previously. In addition, the employee must have been employed outside the U.S. with the international company continuously for one year within the three years preceding the application for admission into the United States. L-1 Intra-company Transferee executives and managers may remain in the United States for up to seven years. Specialized knowledge personnel, however, are limited to a five-year stay.  In this article, Law Office of Jessie Ho will introduce L-1 to readers:

 

There are many advantages and benefits for L-1 L-1 Intra-company Transferee executives and managers and their family dependants L-2, such as:

1.         It is not necessary for an applicant for an L-1 intra-company transferee to have a residence abroad which he/she has no intention of abandoning; a clear, unequivocal expression of intent to depart the United States upon termination of status is required.

2.         L-1 spouse may be granted employment authorization (EAD) to work in the United States.

3.         L-1 children are allowed to attend public school in the United States.

4.         No prevailing wage is required, and L-1 can be on the payroll of U.S. Company or foreign company and be paid only the allowance in the U.S.

5.         No annual quota and no need to be pre-approved by Department of Labor, comparing to H-1B petition.

6.         No education requirement on L-1 visa holder.

 

What are requirements on L-1 companies and beneficiary?

For Petitioner (US company):

There is no restriction on the types of business that can petitioner L-1 visa corporations (S, C, and LLC etc.), partnerships, government-owned entities and non-profit organizations are all eligible. Sponsoring employer need not be US owned or incorporated. There are four business entities in the United States that can offer employment to the alien - a parent company, a branch, a subsidiary, or an affiliate. Only if these entities are able to offer full proof that they meet the definition of a "qualifying organization" will the alien be granted temporary, nonimmigrant work status in the U.S. by the United States Citizenship and Immigration Service (USCIS).

 

There are four tests to determine if the U.S. and foreign entities are of the same qualifying organization:

1.         That business is executed in the U.S. during the entire stay of the L-1 Visa recipient;

2.         That business is transacted in another country while the L-1 Visa recipient is working in the U.S.; 

3.         There is more than just an agent's office in either the U.S. or abroad. It is really doing business;

4.         There is evidence of a systematic and continuous flow of goods or services within the context of a structured business with a business plan. However, it is not necessary that international trade be taking place. Therefore, it is acceptable if the company produces goods or services in the U.S. that will be used entirely within the U.S.                  

 

In order to sponsor an application for an L-1 visa:

1.         Foreign parent company must own at least 50% of a US subsidiary, and have veto powers over the subsidiary's actions; or,

2.         Affiliate US and foreign companies must each be at least 50% owned by the same ultimate parent;

3.         US organization with a branch office abroad qualifies, as does a foreign organization with a US branch (though this must be more than simply an agent or representative);

4.         US organization which employs e.g. sales personnel overseas can sponsor such employees for L-1's even if there is no non-US office.

5.         Ownership requirements are not as strict in the case of very large corporations, where a substantial minority shareholding will be a qualifying relationship.

 

For beneficiary (L-1 Intra-company Transferee):

1. Must have worked abroad for the overseas company for a continuous period of one year in the preceding three years;

2. Must have been employed overseas in a “managerial/executive” position or a position involving “specialized knowledge”;

3. Must be coming to the U.S. company to work in an managerial, executive or specialized knowledge capacity:

1) Managers:

a. Manage the organization, or a department, function or component of the organization

b. Supervise and control the work of other supervisory, professional or managerial employees or

c. Manage an essential function within the organization, or a department or subdivision of the organization

d. Have the authority to hire and fire or recommend hiring and firing of employees.  If the position does not supervise others, the person must function at a senior level within the organization’s hierarchy or with respect to the function managed

e. Exercise discretion over the day-to-day operations of the activity or function. 

2) Executives:

a. Directs the management of the organization or a major component or function

b. Establishes the goals and policies of the organization, component or function

c. Exercises wide latitude in discretionary decision-making

d. Receives only general direction or supervision from higher level executives, the board of directors or stockholders

3) Specialized Knowledge Capacity

a. Have knowledge of the company's products/services, research, systems, proprietary techniques, management, or procedures

b.The level of knowledge required and the employment of the specific alien must directly relate to the proprietary interest of the petitioner.

c. The knowledge must relate to something which relates exclusively to the petitioner's business

4. Must be qualified for the position by virtue of his or her prior education and experience.

 

The above information will help you make initial self-evaluation, if you are interested in L-1 visa or have other questions, please contact  Law Office of Jessie Ho:

http://www.jessieho.com/ContactUs.asp.