Intracompany Transferee Visa

The L-1 category applies to overseas and/or multinational companies with parent, subsidiaries or affiliate companies in the U.S. Employees of such companies may qualify for an intra-company transfer if they have worked for at least 1 year out of the past 3 years for the company overseas, and are coming to the U.S. to fill either an executive or managerial position (L-1A) or a position that requires specialized knowledge (L-1B). The maximum length of stay is 7 years for L-1A visa holders, and 5 years for L-1B. Some multinational corporations may qualify for a “blanket” petition, which simplifies the process of hiring L-1 workers by eliminating the need to file with USCIS, and can directly apply through consulate processing with U.S. Embassies around the world.

L-1A

Requirements of L-1A

  • The sponsoring U.S. entity and the foreign employer abroad must share at least 50%  ownership;
  • The offered position in the U.S. must be in an executive or managerial capacity; and
  • The potential employee to be transferred to the U.S. must have been working as an executive or manager for a qualifying organization abroad for one continuous year within the last three years immediately preceding his or her admission to the United States.

Who qualifies as an Executive or Manager?

The legal definition of management and executive roles for the purpose of the L-1A visa is strict and limited, and a detailed description of the position and the duties to be performed in the U.S. (and those currently performed abroad) must be proven with documentary evidence.

An executive capacity means the following:

  • Directs the management of the organization;
  • Establishes goals and policies of the organization;
  • Exercises a wide latitude in discretionary decision-making; and
  • Receives only general supervision or direction from higher level executives, the board of directors or stockholder of the organization.

A manager is defined as being able to primarily:

  • Manage the organization, or a department, subdivision, function, or component of the organization;
  • Supervise and control the work of other supervisory, professional, or managerial employees, or manage an essential function within the organization, or a department or subdivision of the organization;
  • Has the authority to hire and fire or recommend those as well as other personnel actions such as promotion and leave authorization; and
  • Should have supervisory responsibility for and be able to plan, organize, direct, and control an organization’s major functions and work through other employees to achieve the organization’s goals.

Special Requirements for a New Business

For foreign employers seeking to send an employee to the United States as an executive or manager of a newly established U.S. office, the employer must also show (in addition to the criteria listed above):

  • The U.S. entity as established less than one year ago. Or the U.S. entity have been non-operational with little or no business activity since establishment;
  • The employer has secured sufficient physical premises to house the new office;
  • The U.S. entity has the full financial backing and personnel support from the affiliate entity abroad; and
  • The intended U.S. office will independently support an executive or managerial position within one year of the approval of the petition, including hiring plans.

Family of L-1 Workers

The transferring employee may be accompanied or followed by his or her spouse and unmarried children who are under 21 years of age. Such family members may seek admission in L-2 nonimmigrant classification and, if approved, generally will be granted the same period of stay as the employee. L-2 spouses may apply to get employment authorization to work in the U.S.

Period of Stay

The L-1A visa will initially be granted for a period of up three years which can be extended in two year increments to a maximum of seven years.  However, for new business L-1A petitions, the initial approval period is only for one year.  Thereafter, extensions are in two year increments to the same maximum of seven years.

Green Card Eligibility

Those on L-1A visas may also be eligible to apply for the First Preference Employment-Based Green Cards.  Click here to learn more about Employment-Based Green Cards.

L-1B

Requirements of L-1B

To qualify for L-1B classification in this category, you must be able to show:

  • The sponsoring U.S. entity and the foreign employer abroad must share at least 50% ownership;
  • The offered position in the U.S. must be in a specialized knowledge capacity; and
  • The potential employee to be transferred to the U.S. must have been working as a specialized knowledge position for a qualifying organization abroad for one continuous year within the last three years immediately preceding his or her admission to the United States.

Specialized knowledge is defined as:

  • Having knowledge of the petitioning company’s products/services, research, equipment, systems, proprietary techniques or procedures, or manufacturing processes; and
  • The employee must be more than simply skilled or familiar with the employers’ organization.  Their knowledge must be beyond ordinary and not commonplace within the industry and the knowledge must relate directly to the proprietary interests of the petitioner.

For example, it is not enough for a specialty cook or chef to have knowledge of a restaurants special recipes, they are not considered to have specialized knowledge.

If everyone is specialized, then no one is. In other words, the specialized knowledge requirement is intended for “key” personnel. While all experienced employees in a small company may be “key”, for a larger company there should be a distinction between “key” and normal personnel. This could be made based on the length of experience, level of knowledge, or level of responsibility. A specialized knowledge employee has more skills or knowledge than the ordinary employee; however, this doesn't require an “extraordinary” level of skills, merely more than that of the ordinary employee in the company or field.

L-1B Denial Rates

The rate of L-1B petitions being denied has risen from 30% in 2012 to 34% in 2014. Around 50% of all petitions will receive a Request for Evidence (RFE) with around 35% ultimately being denied leaving 65% eventually being approved.

In Fiscal Year 2012, 18,740 L-1B petitions were processed. Out of those, 8,688 were sent Requests for Evidence, so almost half of all L-1B petitions were sent back to the petitioner for further questions. Out of those, 6,068 were denied.  In other words, in 2012, if an L-1B received an RFE, there was a 70% chance of denial.

In Fiscal Year 2013, which ended on September 30, 2013, 17,723 applications were filed, so essentially 1,000 less petitions than the year before. In spite of this, 8,363 petitions (so again almost half) were sent back to petitioners with an RFE, and out of these, 6,242 were denied. So in this year, the denial rate was even higher with almost 75% of all petitions, which received RFE’s, being denied.

About 95% of all L-1B petitions prepared by our firm are approved, 30% more than the average norm.

These statistics are further evidence of the heightened scrutiny given to this L-1B visa category.   Our firm files many L-1B petitions every year, and we estimate that at most, only about 5-7% of our petitions are denied.  We spend an enormous amount of time trying to gather detailed information about the company, the company’s business and products, the U.S. position and the specialized knowledge that the beneficiary possesses.  Our L-1B petition letters are generally in excess of 20 pages, and our responses to RFEs are usually even longer.

Increasing your chance of success.

We cannot emphasize the importance of providing detailed information about the petitioner, the beneficiary, and specific the plans of the company, as well as documentation for every aspect of the specialized knowledge required and possessed.

Sometimes, even if the petition covers all of requisite factors and is well presented, USCIS doesn’t agree and denies the petition.  As USCIS has reported, they deny about one (1) out of every three (3) L-1B cases.  Admittedly, this presents a huge risk to a company wishing to bring in foreign nationals from an affiliate company abroad.

If a company is able to use the L-1 Blanket Program, however, we have found that in many consulates, specifically in Japan, that the L-1B adjudication is more reasonable and consistent. Therefore, we generally recommend using a blanket at a U.S. Embassy abroad vs. an individual petition filed with USCIS.

Special Requirements for a New Business

For foreign employers seeking to send an employee to the United States as the first employee of a newly established U.S. office, the employer must also show (in addition to the criteria listed above):

  • The U.S. entity as established less than one year ago. Or the U.S. entity have been non-operational with little or no business activity since establishment;
  • The employer has secured sufficient physical premises to house the new office;
  • The U.S. entity has the full financial backing and personnel support from the affiliate entity abroad; and
  • When there are no subordinates to support an executive or managerial position within one year of the approval of the petition, including hiring plans, it may be recommended to apply for specialized knowledge position under L-1B status.

Family of L-1 Workers

The transferring employee may be accompanied or followed by his or her spouse and unmarried children who are under 21 years of age. Such family members may seek admission in L-2 nonimmigrant classification and, if approved, generally will be granted the same period of stay as the employee.

Period of Stay

The L-1B visa will also initially be granted for period of up to three years, which can be extended in two year increments for a maximum of five years. However, for new business L-1A petitions, the initial approval period is only for one year. Thereafter, extensions are in two year increments to the same maximum of five years.

On completing the maximum allowable period in L-1 status, the employee must be employed outside the United States for a minimum of one year before a new application is made for either L or H status.

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