L1 A/B Intra-Company Transfer Visa

OVERVIEW

A citizen of a foreign country, who wishes to enter the United States, generally must first obtain a visa, either a nonimmigrant visa for temporary stay, or an immigrant visa for permanent residence. The type of visa you must have is defined by immigration law, and relates to the purpose of your travel.

DEFINITION

Intra-company transfer visas are available to start-up, small and large companies that wish to transfer a "manager", "executive" or an employee with "specialized knowledge" to a U.S. company that has a "qualifying relationship" with the foreign company. Such transfers can be accomplished for both employees and owners of a company.

ELIGIBILITY

To qualify for an L1 visa, the foreign national being transferred to the United States must have worked for the sponsoring employer holding a position either as a "manager", "executive" or as a person with "specialized knowledge" of the employer's product or process. (S)he must have worked in such a position for at least one in the last three years. (S)he must also be transferring to the United States to accept an equivalent position in a U.S. company.

The above positions are defined as follows:
A "manager" is an employee who:

  • Manages the organization, or a department, subdivision, function or component of the organization;
  • Exercises supervisory control over the work of other supervisors, professionals, or managers, or manages an essential function within the organization, or a department or subdivision of the organization;
  • Has the authority to hire or fire employees, perform other personnel actions (such as granting promotions and leave authorizations) if another employee or employees are directly supervised; or, if no other employee is directly supervised, perform functions at a senior level within the organizational hierarchy or with respect to the function managed; and
  • 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 employee's supervised are professionals.

An "executive" is an employee who:

  • Directs the management of the organization or a 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 Board of Directors, or stockholders of the organization.
    Factors used to evaluate whether a foreign national is a "manager" or "executive" include:
  • Whether the beneficiary has been, and will be, primarily performing the tasks necessary to produce the product or provide the services of the organization;
  • Whether the beneficiary has occupied and will occupy a senior position within a complex organizational hierarchy;
  • Whether the beneficiary has managed and will manage an important function within the organization;
  • Whether the employer has the financial ability to remunerate the executive or manager and other workers who will perform the tasks necessary to produce the product or provide the services of the company;
  • Whether the evidence presented by the employer is sufficient to establish the beneficiary's eligibility for a L1A visa as an executive or manager; and
  • Whether the petitioner is a new entity.


An employee with "specialized knowledge" is an employee who possesses a special knowledge about the sponsoring companies' "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."

THE U.S. AND THE FOREIGN COMPANY

It must also be demonstrated that a "qualifying relationship" exists between the foreign company for whom the foreign national worked, and the U.S. company to which the foreign national is being transferred. Specifically, it must be shown that the U.S. company is a wholly-owned subsidiary, branch or affiliate of a foreign company.
These terms are defined as follows:

A "branch" is defined as an operating division or office of the same organization housed in a different location.

An "affiliate" is defined as one of two subsidiaries which are owned or controlled by the same parent or individual, or by a group of individuals so long as each individual owns and controls approximately the same share or percentage of each entity. An affiliate also includes certain international accounting firms that market accounting services under an internationally recognized name.

A "subsidiary" is defined as a company which, either directly or indirectly, is at least 50% owned by another entity; is 50% owned as part of a 50-50 joint venture with equal control and veto power; or is less than 50% owned, but with "in fact" control by the other entity.
When filing the petition, the international company will be required to show that sufficient physical premises to house the new office have been secured and that within one year of the approval of the petition, the intended U.S. operation will support an executive or managerial position. In the case of a person with specialized knowledge, the petitioner will be required to show that it has the financial ability to remunerate the beneficiary and to commence doing business in the United States. A petition for a qualified employee of a new office will be approved for a period not to exceed one year, after which the petitioner must demonstrate that it is doing business as described above in order for the petition and alien's stay to be extended beyond one year.

INDIVIDUAL PETITION VERSES BLANKET PETITION

The employment must be approved in advance by the United States Citizenship and Immigration Services (USCIS) in the United States on the basis of a petition, filed by the employer with the USCIS Service Center. Companies seeking the classification of multiple aliens as intra company transferees may file a blanket petition with USCIS. The blanket petition provision is meant to serve only relatively large, established companies having multi-layered structures and numerous related business entities. The blanket petition provision is available only to managers, executives and specialized knowledge professional that are destined to work in an established office.

DEPENDENTS

Spouses and children under the age of 21 who wish to accompany or join the principal visa holder in the United States for the duration of his/her stay require derivative L-2 visas. Spouses and/or children who do not intend to reside in the United States with the principal visa holder, but visit for vacations only, may be eligible to apply for visitor B-2 visa or if qualified, travel visa free under the visa waiver program.

There is no requirement that the spouse and/or children of an L-2 visa holder apply for a student (F-1) visa if they wish to study in the U.S.; they may study on an L-2 visa.

EMPLOYMENT

Spouses may seek employment authorization on derivative L-2 visas.



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