Overseas Transfers (L-1)

General

L-1 “intra-company transferee” visa category can be used by multinational companies to transfer managerial and executive employees, or employees who possess specialized knowledge from their offices overseas to their offices in the United States. There are two types of L-1 visa: L-1A is designated for managerial or executive personnel; L-1B is for employees with specialized knowledge. The process of applying for L-1 visa generally requires filing a petition with the USCIS and then application at a U.S. Consulate overseas. For large companies, there exists a different procedure whereby approval is issued for the company covering all employees that the company wishes to transfer, which makes it possible for direct application for L-1 visa at a U.S. Consulate. This both saves money on application fees and speeds up the application process by eliminating the need to file and await separate approvals from the USCIS. As explained below, L-1 visa category has certain distinct advantages over H-1B visa category and other work visa categories, first of all, in terms of subsequent application for a Green Card and the absence of yearly cap on L visas.

Q: Who is eligible for L-1 visa?

A: Employees of multinational organizations (entities that have parent, branch, subsidiary, or affiliate offices in the United States and overseas), who worked continuously in a managerial, executive, or specialized knowledge capacity for the overseas entity for at least one (1) year within preceding three (3) years, and who are coming to work temporarily in managerial, executive, or specialized knowledge capacity for an organization in the United States, which is either a parent, subsidiary, branch, or affiliate of the overseas organization are eligible to receive L-1 visa.

Q: Who is considered to be a manager or an executive?

A: A manager is an employee whose primary responsibility is a) to manage the organization, department, subdivision, function or component, and b) supervise and control the work of other supervisory, professional or managerial employees (upper level managers), or to manage an essential function of an organization or department or subdivision. A manager must have authority to make personnel decisions (i.e. hire, fire, promote, etc.) and exercise discretion over the assigned function or activity.

An executive is an employee whose primary responsibility is a) to direct the management of the organization or a major component or function, and b) establish goals and policies. An executive must exercise wide latitude of discretionary decision making and may only receive general supervision or direction either from owners, board of directors, or the very top executives in the company.

Q: Who is considered to have “specialized knowledge”?

A: Specialized knowledge as applied to L-1 visa category, is knowledge of the company’s business (processes, procedures, product, equipment, techniques, management, etc.) that is advanced or uncommon. It’s uniqueness is short of being proprietary, but must be such that it can not be easily learned by someone else. USCIS will generally look to how this knowledge affects the company’s competitiveness, productivity, financial position, or even image, and whether the knowledge could only be gained through prior extensive experience with the employer. It is a level of knowledge of the company or its business that goes beyond that of an average skilled worker.

Q: What are the advantages of L-1 visa in comparison to H-1B and other work visas?

A: An important advantage of the L-1 visa category in this day and age is that there is no cap on L-1 visas, unlike H-1B visas. Additionally, there is no requirement that L-1 employee be paid the “required wage”, or that the wage be at the level of prevailing wage for the position. This means that as long as the wage is enough to guarantee that L-1 employee does not become a “public charge”, the salary will be sufficient. This is especially significant in a start-up or small business context. L-1 visas are protected by the dual intent doctrine, unlike some other work visa categories, such as TN.

Q: Is there an advantage of L-1A visa when applying for Green Card?

A: While there is no per se advantage of having L-1A status, most L-1A employees would meet the qualifications for an employment-based Green Card category that largely mirrors the requirements of L-1A visa. A significant distinction is that an L-1A employee may be granted L-1A visa even if the U.S. operation is brand new, while in order to qualify for a Green Card, the manager or executive must be coming to work for a U.S. entity that has been in existence for at least one (1) year. Those eligible to apply under this category do not have to go through a labor certification process and may apply directly to the USCIS, saving both time and resources.

Q: What is a qualifying organization?

A: In order for L-1 visa to be available, there needs to be at least two (2) organizations in existence: one in the United States and the other in at least one foreign country. These must be legal entities which include variety of types of organizations, such as commercial companies, nonprofit and religious organizations, as well as charities. The U.S. organization must be either parent, subsidiary, branch, or affiliate of the foreign organization. Exception applies to international accounting and management consulting firms, which may not share such a relationship, but are afforded the ability to obtain L-1 visas for their employees.
Q: What salary is required to qualify for L-1 visa?

A: There is no minimum salary for L-1 employees. Any reasonable salary that is consistent with the proposed position would be sufficient. In fact, there may be no salary at all, for some positions. The USCIS and Consular officers will, however, inquire into whether the L-1 employee will have enough financial resources so that s/he is not dependent upon public while on assignment in the U.S., i.e. that the L-1 employee does not become a “public charge.”

Q: Are there any restrictions on off-site employment?

A: Off-site employed is typically not authorized for L-1B employees, if the employee’s work is supervised by someone other than the petitioning employer, or where the work performed is not related to the specialized knowledge of the L-1B employee.
Q: For how long do I need to be employed abroad to qualify for L-1 visa?

A: The rule is that L-1 employee must be employed with the qualifying organization overseas for at least one (1) year in the preceding three (3) years in order to be eligible for L-1 visa. This is also true for blanket petitions.

Q: What is L-Blanket Petition?

A: A Blanket Petition allows certain commercial companies to obtain a blanket approval that covers all their employees, thus eliminating the need and expense of applying to the USCIS for each individual employee. The employees will still need to obtain their U.S. visas at the Consulates individually, but they may do so by presenting a blanket approval for the company.

In order to qualify for blanket petition, the organization must satisfy the following requirements;

1.The U.S. and overseas entities must be engaged in commercial trade or services. Nonprofit organizations are not eligible to obtain blanket approvals;
2.The U.S. office must have been in business for at least one (1) year;
3.The employer must have at least three (3) branches, subsidiaries, or affiliates, either in the United States or abroad;
4.The employer must have either a) ten or more L-1 visas approved within the preceding year, b) U.S. sales of at least one (1) million; or c) more than 1000 U.S. employees.

Rule that would allow employees who worked for only six (6) months for employer abroad, to be transferred to the U.S. on a blanket approval, has been eliminated. Now all L-1 employees must have worked for the overseas entity for at least one (1) year.

Q: What is “new office” L-1 visa?

A: A new office is a U.S. parent, subsidiary, branch, or affiliate, which has been doing business for less than one (1) year. Several issues arise in the context of a “new office” L-1 visa application. First, the evidence must be presented that the petitioner has secured physical premises. Second, a detailed business plan should be submitted to show that the petitioner will support an executive or managerial position within one (1) year. A “new office” petition may only be approved for one (1) year. In order to extend the petition after the initial one-year approval, the petitioner must show that the “new office” is actively operating.

Q: What is the time limit on L-1 status?

A: L-1A managers and executives may be given up to seven (7) year stay in L-1A status. L-1B “specialized knowledge” employees may be given up to six (6) year stay in L-1B status.

Q: Can you change from L-1B to L-1A?

A: Yes, if job duties change to encompass managerial or executive duties, a change to L-1A category is possible.

Q: Can you change from L-1 to H-1B?

A: Yes, one can change status from L-1 to H-1B. However, it must be noted that time spent in L status counts toward the maximum allowable time in H status and it will be deducted from the time given in H-1B status. The advantages of changing from L to H include the possibility of extending H status beyond the maximum allowable time, if the change is accomplished timely. Read more about extending H status in H-1B article.

Q: Can you apply for Green Card while on L-1 visa?

A: Yes. Those in L-1 status may apply for a Green Card without endangering their L-1 status. Please explanation of dual intent doctrine in the next answer.
Q: What is dual intent in context of L-1 visa?

A: Dual intent doctrine is recognized by the USCIS and DOS in granting visas and extensions to L-1 employees and their family members. This means that although L-1 is a nonimmigrant category, which generally requires demonstration of intent to remain in the U.S. temporarily, filing of an Immigrant Visa Petition or an Adjustment of Status application will not disqualify L-1/L-2 nonimmigrant from admission as a nonimmigrant or from filing an extension of status petition. In other words, L-1/L-2 nonimmigrants can have both nonimmigrant status and a pending permanent residence petition; they will not be denied L-1/L-2 status simply because they filed a permanent residence petition.
Q: Can L-2 spouses work in the US?

A: Spouses of L-1 employees who are in the United States in L-2 status may apply separately to the USCIS for employment authorization. They may commence employment with any employer once they have been granted such employment authorization.