L1 INTRACOMPANY TRANSFEREES

The L1 nonimmigrant visa requires that the applicant had been employed for at least one of the last 3 years by the parent, subsidiary, or affiliated company overseas and that the U.S. position must be either executive or managerial or requires certain specialized knowledge that is possessed by the applicant.  It is possible for the applicant to set up a new company (that is related to the overseas parent) and have the company sponsor him for an L1A manager or L1B specialized knowledge visa.

Unless a company has obtained a blanket approval, the process is initiated by the company filing an I-129 petition and supporting documentation at the USCIS Service Center having jurisdiction over the intended place of employment.  Except for "new businesses" the initial L petition is valid for three years. L1A managers and executives are eligible for 7 years of employment in the U.S., L1B specialists are eligible for 5 years of employment in the U.S.  Certain L1B's can be converted to L1A's if the position and filing of the amended petition to a managerial position takes place before the commencement of the 5th year.

During the last few years, USCIS' standards of who qualifies have definitely gotten stricter.  Just because a company views someone as being managerial or feels the employee's special skills will be required in the U.S. are not enough.  When drafting letters in support of L petitions companies must, in the minimum, meet the following statutory definitions:

Managerial capacity is defined under INA §101(a)(44)(A), 8 U.S.C. §1101(a)(44)(A); 8 C.F.R. §214(l)(1)(ii)(B) – Managerial capacity means an assignment with an organization in which the employee primarily:

1. manages the organization, department, subdivision, function or component;
2. supervises and controls the work of other supervisory, professional or managerial employees, or manages an essential function within the organization or department or subdivision of the organization;
3. has authority to hire and fire or recommend personnel actions (if other employees directly supervised), or if no direction supervision, functions at a senior level within the hierarchy or as to function managed and
4. exercises discretion over day-to-day operations of the activity or function.

Executive capacity defined under INA §101(a)(44)(B), 8 U.S.C. §1101(a)(44)(B), 8 C.F.R. §214.2(l)(1)(ii)(C), means an assignment in an organization in which the employee primarily:

1. Directs the management of the organization or a major component or function;
2. Establishes goals and policies;
3. Exercises wide latitude in discretionary decision making and
4. Receives only general supervision or direction from higher level executives, board of directors or stockholders.  In determining whether an individual is acting in a managerial or executive capacity, AG shall take into account the reasonable needs of the organization, component or function in light of the overall purpose and stage of development of the organization, component or function.  The number of employees supervised is not determinative. 9 FAM 41.54 N.8.2.

Specialized knowledge is defined to include a person who has special knowledge of the company product, service, research, equipment, techniques, management or other interests and its application in international markets or has an advanced level of knowledge of processes and procedures of the company. 8 C.F.R. §214.2(l)(1)(ii)(D).  It includes a type of specialized or advanced knowledge that is different from that generally found in a particular industry but need not be proprietary or unique.

Spouses of L1 visa holders are now permitted to work in the U.S.  They may first wish to get an approval from the USCIS.  The issuance of the Employment Authorization Document is almost automatic in that it does not require any job offer, job skills or education by the applicant; just proof of the marital relationship.  However, this permission to work is not available to children of L1 visa holders.

If you are interested in sponsoring an employee for L1A or L1B visa status or your employer is interested in sponsoring you for the L1 visa, please contact our immigration attorneys in NY and we will be happy to discuss this visa category with you.