By Elissa (Ying) Lu
L-1 visa is a nonimmigrant visa. This type of visa allows foreign companies to transfer executives, managers, or employees with special knowledge to the U.S. company. There must be a qualifying relationship between the U.S. company and the foreign company. The U.S. company must be a parent, subsidiary, branch, or affiliate company of the foreign company.
L-1 visa allows the foreign employee to work for the U.S. employer for an extended period of time.
Spouses and unmarried children under 21 years old of the L-1 visa holders are eligible for the L-2 visas. L-2 holders are allowed to attend school.
L-2 spouses can also apply for an Employment Authorization Document (EAD) if they wish to work in the U.S. L-2 children, however, are not eligible for an EAD.
On November 12, 2021, as per the settlement agreement in Shergill, et al. v. Mayorka, USCIS issued a Policy Alert, clarifying that it will consider L and E dependent spouses to be employment authorized incidental to their status. This means that upon admission and issuance of a valid I-94 document showing L-2 or E spousal status, E and L dependent spouses are no longer required to request employment authorization by filing Form I-765. They will automatically be authorized to work.
There is no limit on how many L1 visas can be issued to applicants each year. It can be an alternative visa option for the H-1B visas.
The H-1B visa cap is limited to 65,000 visas per year with an additional 20,000 H-1B visas set aside for applicants with advanced degrees.
The concept of Dual Intent allows a foreign national to hold a temporary nonimmigrant status while at the same time applying for permanent residency in the United States.
Common nonimmigrant visas include B1/B2 visas, F-1 visas, E visas etc. For example, B1/B2 tourist (visitor) visa requires you not to have an immigrant intent, meaning that after your visit the U.S. you should return to your home country with no intent to immigrate to the United States.
L-1 visa is a dual-intent visa, which means that you can legally stay and work in the U.S. with the intent to possibly immigrate to the United States and obtain Permanent Residency here. For example, you can stay in the U.S. on L-1 visa while your family-based petition is still pending.
Please note that only the U.S. company can file L-1 petition on behalf of the foreign beneficiary transferee. L-1 visa petition is not a self-petition.
There are two types of the L-1 visas: L-1A visa and L-1B visa. The L-1A visa category is for employees who will be working in a managerial or executive capacity and the L-1B visa is for employees with specialized knowledge.
8 CFR §214.2(l)(1)(ii)(B) defines “managerial capacity” as an assignment within an organization in which the employee primarily:
1) manages the organization, or a department, subdivision, function, or component thereof;
2) supervises and controls the work of other employees, or manages an essential function within the organization, has authority to hire and functions at a senior level within the organization;
3) exercises discretion over day-to-day operations of the activity or function for which the employee has authority.
8 CFR §214.2(l)(1)(ii)(C) defines “executive capacity” to mean an assignment within an organization in which the employee primarily:
1) directs the management of the organization or a major component or function thereof;
2) establishes goals and policies;
3) exercises wide latitude in discretionary decision-making and
4) receives only general supervision from higher level personnel.
8 CFR §214.2(l)(1)(ii)(D) defines “specialized knowledge” as a 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 foreign employee with specialized knowledge can work for the U.S. company as a manager or an executive. Similarly, a foreign employee who worked for the overseas company as an executive or a manager can also come to the U.S. with the L-1B visa if he/she possesses specialized knowledge.
L-1 status is generally approved for an initial period of three years. However, if the U.S. entity is a start-up company, the initial validity period is only good for one year.
An L-1 extension of stay may be authorized in increments of up to two years. The L-1A (manager/executive) can be extended up to a statutory limit of seven years; the L-1B (specialized knowledge) is limited to a total of five years.
However, any time an L-1 beneficiary spends outside of the U.S. may be “recaptured” at the end of his/her status limit. This extension petition requires proof in the form of arrival and departure records (such as I-94 record) and other evidence supporting a beneficiary’s time spent outside the U.S.
An L-1 A executive or manager who has been in the U.S. in H or L status for seven years cannot be readmitted in H or L status, obtain an extension of L status, or obtain a change of H status until he/she has stayed outside of the U.S. for a year. Similarly, an L-1B specialized knowledge employee who has reached the maximum period of stay cannot restart a new cycle of five years unless he/she has stayed outside of the U.S. for a year as well.
There is one exception to the 5/7 year-year cap. If (1) the L-1 beneficiaries do not reside continuously in the U.S, but engage in the U.S. employment on an intermittent or seasonal basis, or for less than six months in the aggregate per year, or (2) they reside abroad and periodically commute to the U.S. to work part time, they can have new L-1 petitions approved indefinitely. However, if their spouse or children have continuously resided in the U.S., as L-2 visa holders, the L-1 beneficiary will still be subjected to the 5/7-year cap.
There are five requirements for getting the L-1 visas.
1. There must be a qualifying relationship between the foreign company and the U.S. company. The U.S. company must be a parent, subsidiary, branch, or affiliate company of the foreign company.
2. The petitioning company is doing sufficient business in the United States to support the employment of the L-1 beneficiary.
3. The beneficiary obtaining the L-1 visa must have worked for the foreign company as a full-time employee for a continuous period of one year within 3 years before his/her petition is filed.
4. The beneficiary’s position in the foreign company must be managerial, executive or requires specialized knowledge.
5. The beneficiary’s work in the United States must be managerial, executive or this work must require the specialized knowledge.
The L-1 visa application begins with filing the I-129 petition with the USCIS. Once the I-129 petition is approved, for beneficiaries who are already in the U.S. with another valid nonimmigrant status, such as B1/B2, their status will be changed from that status to the L-1 status. For beneficiaries who lives outside of the U.S., they will go through the consular processing in their residence country to apply for an L-1 visa using the Form DS-160.
Documents Needed for the L-1 Visa I-129 Petition
There are generally three sets of documents needed from the foreign company, the U.S. petitioning company and the beneficiary who will be transferred to the U.S., respectively. Please note that this checklist is not exhaustive. Please discuss the list of the documents with an experienced L-1visa attorney before submitting your paperwork to the USCIS.
Foreign company documents:
1. Articles of incorporation;
2. Stock certificates;
3. Stock ledger;
4. Business license;
5. Income tax returns;
6. Audited financial report;
7. Documents of business transactions (contracts, letters of credit);
8. Promotional materials of the company;
9. Organizational charts;
10. Company’s letterhead with its name, logo, address;
11. Pictures of the foreign office.
U.S. company documents:
1. Articles of incorporation or association;
2. Business license;
3. Application for EIN (Form SS-4);
4. Stock certificates showing the qualifying relationship between the foreign company and the U.S. company;
5. Bank statements evidencing the qualifying relationship
6. Financial statements of the U.S. company;
7. Audited accounts (cash flow reports, balance sheets);
8. Corporate income tax return Form 1120 (if any);
9. Office lease agreement;
10. Pictures of the company (interior and exterior).
11. Promotional materials of the company;
12. Corporate bylaws;
13. Documents showing an on-going business, such as commercial contracts and letters of credit;
14. Business plan. The business plan should be very detailed;
15. Organizational charts, which should include the number of the employees and the position, which is held by the beneficiary as a transferee;
16. Company’s payroll records;
Beneficiary’s documents:
1. Passport;
2. Old passport (if any);
3. Resume and CV;
4. Diploma;
5. Employment verification letter from the foreign company, reflecting the beneficiary’s employment outside the U.S. as an executive/manager or person with specialized knowledge;
6. Payroll record indicating one-year continuous employment with the foreign company;
7. Appointment documents regarding the transfer;
Because the USCIS filing fees change periodically, please check the amount of the correct fees on the USCIS’s official website: www.uscis.gov. Currently, USCIS charges the following fees associated with an L-1 visa.
· USCIS Filing Fee: The standard filing fee for any I-129 petition is $460. This fee applies to new L-1 visas as well as L-1 extensions.
· Fraud Prevention and Detection Fee: $500. It is applicable to all first time L-1 visa petitions but it is not required for L-1 visa extensions or change of status from L-1A to L-1B or from L-1B to L-1A with the same employer. Employers also need to pay this fee if a foreign worker already in L-1 nonimmigrant status needs to change employers, or begin new concurrent employment.
· Public Law 114-113 Fee: $4,500. L-1 employers must pay the Public Law fee if they employ 50 or more employees in the United States and more than 50 percent of these employees are in H-1B, L-1A or L-1B nonimmigrant status.
· Premium Processing Fee: Premium Processing Fee is not mandatory. It is a nice option to shorten the amount of time it takes for USCIS to process your petition from months to 15 calendar days for a fee of $ 2,500.
· Legal Fee: The legal fee varies greatly among different immigration law firms. A flat fee is usually charged. Considering that L-1 visa petitions require a multitude of supporting evidence, hiring an attorney that you can trust will be very helpful.
As we have mentioned above, L-1 visa is a “dual intent” visa. While holding the L-1 status, the beneficiary can seek the status of the permanent resident. This process is known as an adjustment of status. The requirements will depend on the L-1 visa category.
L-1A visa to Green Card
As a manager or an executive, the beneficiary will be looking to file a Green Card under the EB-1C category. Typically, the EB-1C category does not have a visa backlog for applicants from all countries. Therefore, it is deemed as a faster route to get the green card. In order to file a successful EB-1C petition, the U.S. employer must prove that
· The petitioning company is a U.S. employer.
· The petitioning company has been doing business in the U.S. for at least 1 year prior to filing.
· The petitioning company has a qualifying relationship with a foreign company, as a parent company, branch, subsidiary, or affiliate.
· The beneficiary has been employed outside of the United States in the 3 years preceding the petition for at least 1 year by a qualifying foreign entity.
· The beneficiary’s employment has been outside the United States in a managerial or executive capacity.
· The beneficiary is seeking to continue rendering services to the same employer, or its subsidiary or affiliate, in a managerial or executive capacity.
L-1B visa to Green Card
L-1B employees usually apply for the Green Card under the EB-2 category. Compare to the L-1A visa category where the DOL labor certification ("PERM”) is not needed, in L-1B cases the U.S. employer must obtain an approved DOL certification. Therefore, the first step in this process will be obtaining a Labor Certification by the employer on behalf of the beneficiary.
After the PERM is certified, the employer should file the I-140 petition for the foreign worker. The last step of the process is to file the I-485 application to adjust the status. The I-485 application can be filed concurrently with the I-140 petition if the beneficiary’s priority date is current as per the visa bulletin.
The Law office of Lu & Associates is specialized in the work visa applications. We have worked with a number of small and big international companies on their L-1 visa applications. Our mission is to provide immigrants strong voice and the experienced representation they deserve. Our firm offers a wide range of immigration services with outstanding record of success.
If you would like to schedule an in-person or phone consultation, please contact us via email info@uslulaw.com or give us a call at (415) 992-8806. You can also conveniently schedule your free initial consultation on our website.
We look forward to working with you!
