Immigration Expert Says Move Will Harm America’s Economic Recovery, and That Real Risk to Labor Market Is Continued White House Malpractice in Preventing Spread of COVID-19
On June 22, 2020, after months of speculation, President Trump issued the “Proclamation Suspending Entry of Aliens Who Present a Risk to the U.S, Labor Market Following the Coronavirus Outbreak.” Referencing the millions of Americans who remain out of work due to COVID-19-related economic disruptions,
President Trump suspended the issuance of H-1B, H-2B, L-1 and J-1 Work Visas, effective 12:01 am, EST, on June 24, 2020, until December 31, 2020.
Richard Herman, a nationally-renowned immigration lawyer and co-author of the book, Immigrant, Inc. – Why Immigrant Entrepreneurs Are Driving the New Economy (and how they will save the American Worker), says that this new immigration restriction will harm U.S. workers and the ability to rebuild the economy:
“The data shows that immigrant workers complement, rather than compete against, native-born workers, because they tend to have different levels of education, work in different occupations, specialize in different tasks, and live in different places.
Much like the President’s disregard of medical experts who warn against large public gatherings, and their urgent proclamations for using face masks, testing, and tracing to reduce the spread of COVID-19, the President is now disregarding the economic experts. The dominant economic resarch demonstrates that immigrant workers create jobs and help expand the U.S. economy through innovation (particularly in STEM fields), entrepreneurship, consumption, exports, and filling gaps in the labor market.”
EXPANSION OF EARLIER IMMIGRANT VISA BAN
This order comes two months after an earlier Proclamation which temporarily suspended some family and most employment based immigrant visas. The new Proclamation extends the earlier restrictions until the end of the year.
H-1B visas are used for skilled workers and are common in technology-driven industries. H-2B visas are for seasonal workers such as landscapers. L-1 visas are intra-company transfer visas for executives and other skilled workers. J-1cultural exchange visas are for au pairs, camp counselors and others.
WHO IS AFFECTED?
Hundreds of thousands may be affected by the new restriction. In 2019, the H-1B was awarded to about 133,000 workers starting initial employment with a company. More than 12, 000 people were granted L-1 visas in initial applications, and more than 98,000 were issued H-2B visas. Approximately 300,000 J-1 visas are issued per year (although many J-1 categories appear exempt from ban.).
While the Proclamation appears to exclude any worker who is:
- In the U.S. on the date of the Proclamation enactment;
- Has a non-immigrant visa that is valid on the date of Proclamation enactment;
- J-1 researchers and physicians;
- Seeking to enter the U.S. to provide temporary labor essential to the U.S. food supply chains; and
- Whose work would be in the national interest (such as work related to law enforcement, COVID-19 medical care or research, and activity necessary to facilitate immediate economic recovery).
WHAT IS TRUMP’S RATIONALE?
Without offering any corroborating research, the Trump Administration has indicated that the above-restrictions will free up 525,000 jobs for Americans.
In analyzing the Proclamation, Richard Herman, founder of the Herman Legal Group, states the following:
“This Proclamation will hinder economic recovery because it will make it much harder for employers to fill critical positions, it will encourage U.S. employers to move abroad, and it will turn away some of the world’s most innovative and entrepreneurial minds. This stunning display of ignorance and xenophobia by Donald Trump may play well to his political base, but it will do serious damage to the U.S. economy as we attempt to rebuild from the damage done due to his reckless response to COVID-19.”
BOTTOM LINE: TRUMP CONTINUES TO DAMAGE THE U.S. ECONOMY
The real risk to U.S. workers and economy is not immigration—it’s Trump’s gross mismanagement of the pandemic.”
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Contact Our Firm for More Information
Attorney Richard Herman
Founded in 1995, the Herman Legal Group focuses on immigration law, including family immigration, removal defense, employment-based immigration, investor immigration, asylum, immigration waivers. We are headquartered in Cleveland, Ohio, and have additional offices in Columbus, Columbus, Cincinnati, Dayton, Toledo, Detroit, Buffalo, Pittsburgh, Charlotte, Miami, and Dallas. We serve clients, in over 12 languages, in all 50 states
Richard is one of the pioneers of the movement by Midwest cities to attract and welcome immigrants who can help grow the economy, create jobs and reverse progressive depopulation. He regularly advises cities and counties on innovative ways to leverage existing immigration law to create jobs and attract foreign direct investment.
Voted for inclusion in the 2015-2020 editions of The Best Lawyers in America© and listed in Super Lawyers© for more than fourteen consecutive years, Richard began his immigration law career by moving to Moscow, Russia in 1993, straight out of law school, to eventually open a law office two blocks from the Kremlin to represent post-Soviet entrepreneurs.
As an authority on U.S. immigration law and a provocateur for immigrant-friendly, pro-entrepreneur policies , Richard is often invited to strategize and deliver keynote addresses around the country. Has spoken often for Michael Bloomberg and Rupert Murdoch’s Partnership for a New American Economy, chambers of commerce, universities and cities. Known for his direct and sometimes controversial style, Richard has appeared in numerous national media outlets. Richard can be reached at +1-216-696-6170.
The L-1 visa is used to transfer foreign employees to the United States when the foreign company and the US company or office are related in certain ways (parent/subsidiary, for example). A blanket L-1 petition is used by larger multinational companies to transfer multiple employees to the US on short notice.
The Advantage of a Blanket Petition
Without an approved blanket petition, a company must file a full L-1 petition with the USCIS every time it seeks to transfer an employee to the United States. With an approved blanket petition, however, all the company has to do is to file a copy of the approved blanket petition along with certain information specific to the individual employees the company seeks to transfer.
Requirements
Not every company is qualified to submit a blanket L1 petition. To qualify, the company must:
- Maintain a US office that has been in business for at least a year;
- Maintain “qualifying relationships” with at least three “qualifying organizations” (branches, subsidiaries, or affiliates),whether domestic or foreign;
- The company, together with its qualifying organizations, must qualify under at least one of the following criterion:
- The group has collectively obtained at least 10 L1 visas for employees over the past year;
- The group’s combined sales total least $25 million; or
- The group’s US workforce numbers no less than 1,000 employees.
Fees
The filing fee for an L-1 Blanket Visa Petition is $325, plus an anti-fraud fee of $500, for a total of $825. This amount does not include the fee payable for each individual L-1 petition. If you seek expedites services through Premium Processing, an extra fee of $1440 applies.
Duration of Blanket Petition Approval
The initial validity of a blanket visa is three years from the date it is issued. It is also possible to file for an extension. Please note that the validity period of the blanket petition is different from the period of stay offered to individual employees present in the US on an L-1 visa.
If the US company’s blanket petition will expire before an employee’s individual period of stay expires, the company will have to either obtain a blanket petition extension or file an individual L-1 petition on behalf of the employee.
Procedure for Filing an L-1 Blanket Petition
To apply for an L-1 blanket petition:
- Complete Form I-129, Petition for Nonimmigrant Worker;
- Include documents proving that the company meets the requirements to file a blanket petition (combined sales, number of employees, etc.);
- Include documents proving the relationships between the US company and the other qualifying organizations it is relying on to qualify for a blanket petition;
- Send the entire application package to the USCIS; and
- Wait for the USCIS to send you an I-797 approval notice (the approval notice should state the period of validity of the blanket petition).
When you seek to bring in employees under the blanket petition, complete Form I-129S and send it to each employee along with a copy of the I-797approval notice and certain other documentation. The employee beneficiaries will then proceed to a US embassy or consulate to have their visas issued.
The L-1 and the H-ฺ1B are two of the most popular employment-based US visas. Some people could potentially qualify for either one, and for those with the luxury of making a choice, it is important to understand the difference between these two immigration statuses. While the L-1 Intracompany Transferee Visa is preferable for most people, for some people the H-1B Visa is the best choice.
Summary of the L-1 and the H-1B
The L-1 visa is designed to allow an employee of a multinational company to transfer to the US office of the same or a related company. The employee must be a manager, an executive, or an employee possessing “specialized knowledge.”
The H-1B visa is designed to allow employees with a college degree or its equivalent to come to the United States in response to a firm job offer to work in a “specialty occupation” such as:
- STEM fields;
- Medicine;
- Architecture; or
- Other fields that demand similar levels of expertise.
Typically, the position must require knowledge of the type that the H-1B holder gained while studying in college.
Dual Intent
Both the L-1 and the H-1B categories are considered “dual intent”, which means that it is OK to apply for permanent residence (a “green card”) while living in the US under one of these statuses.
Key Differences
Despite their similarity, important differences exist between L-1 and H-1B status, as outlined below.
Educational Requirements
There are no formal educational requirements to obtain an L-1 visa. Of course, an employer is likely to require some sort of higher education from, say, an executive, and the USCIS might doubt the authenticity of an application filed on behalf of an executive with no formal education. It’s just that the USCIS doesn’t absolutely require a degree to issue an L1 visa.
On the other hand, an H-1B applicant must possess at least a bachelor’s degree or its equivalent. An H-1B applicant is also expected to possess expertise in a “specialty occupation.” In some cases, the USCIS will allow hands-on work experience to substitute for formal education, meaning that the applicant must establish the equivalent of a bachelor’s degree through a combination of education and work experience.
Employer Eligibility
To qualify to sponsor an employee for an L-1 visa, your company must qualify as “multinational” as defined by US immigration law. It must be doing business in the US and at least one other country, and it must have a qualifying relationship with a company located abroad (a subsidiary, for example).
The sponsored employee must have worked for the same company overseas, or have worked for an overseas company with a qualifying affiliation with the sponsoring company, for at least one out of the past three years.
By contrast, a US-based company (and only a US-based company) can sponsor an employee under the H-1B category.
Period of Stay
L-1 visa holders are normally granted a two-year period of stay when they first enter the US. If they are coming to establish a new office, however, only a one-year period of stay is granted. The L-1 holder can extend his period of stay in two-year increments until the maximum time limit is reached. For an L-1A holder, this limit is seven years, while for an L-1B holder, it is only five years.
After the L1 limit is reached, no extensions will be allowed — the employee must either return home permanently, qualify under another visa status, or return home to re-qualify for another L-1 visa (this will take at least a year of additional work experience abroad).
An H-1B visa holder, by contrast, is typically granted an initial three-year period of stay, which can be extended one for another three years, or extended in smaller increments until the six-year limit is reached. In certain limited instances, an H-1B holder is eligible to extend beyond this six-year limit.
Keep in mind also that time spent in the US in H-1B status will count against the L-1 deadline, and vice versa.
Limitations on the Total Number of Visas Issued (Quotas)
There is no quota limitation for the L-1 visa. It’s a different story for the H-1B visa, however — there is an annual cap of 65,000 visas, plus another 20,000 visas allowed for applicants who hold advanced degrees (beyond a bachelor’s degree). In many years the H-1B quota represents far less than half the total number of applications received by the USCIS. Neither of these caps apply to universities or non-profit organizations.
The L-2 visa is a secondary visa that allows the immediate family of an L-1 visa holder to accompany him to the United States. Like the L-1 visa, it is considered a nonimmigrant visa. L-2 visa holders are entitled to remain in the US as long as the primary L-1 visa holder is entitled to stay, and they must leave the US whenever the L-1 visa holder’s period of stay expires.
Who is Eligible?
The spouse and children may accompany the primary L-1 visa holder to the United States. The children must be under the age of 21, however.
The marriage must be bona-fide (in other words, it cannot be a “common law” marriage or a local equivalent, and it cannot have been entered into for the sole purpose of obtaining immigration benefits). Please note the the US government now recognizes same-sex marriages as bona fide.
Ineligible Relatives
Only the spouse and children of the L-1 visa holder are eligible for L-2 status. The L-1 visa holder’s parents, for example, are not eligible, even if the L-1 visa holder is their primary caretaker.
L-2 Privileges
- Travel: L-2 visa holders may freely travel in and out of the US during the period of validity of their L-2 visa. Note that the visa validity period is not the same as the period of stay.
If you are in the US in another visa status and you adjust your status to L-2 without leaving the US, you will not be issued an L-2 visa at all, although you will be permitted to remain in the US in L-2 status. In this case, if you leave the US then you will need to apply for an L-2 visa at a US embassy or consulate in order to return to the US.
- Work: The spouse of an L-1 visa holder may work in the United States part-time or full-time by applying for and receiving an Employment Authorization Document. The children of an L-1 visa holder may not work in the United States.
- All L-2 visa holders may study in the US either part-time or full-time.
Period of Stay
As an L-2 visa holder, you may remain in the US as long as the primary L-1 visa holder is allowed to remain. Typically, an L-1 visa holder is permitted to stay in the US for an initial term of two years (but only one year for an L-1A visa holder who works for a newly-established US office). Extensions are typically granted in two-year immigrants. The maximum period of stay is seven years for L-1A status and five years for L-1B status.
Dual Intent and Permanent Residence
Both the L-1 and L-2 visas are “dual intent” visas, which means that you can apply for permanent residence (a “green card”) without jeopardizing your L status. Most L-2 visa holders who eventually obtain green cards do so as a consequence of the primary L-1 visa holder obtaining permanent residence.
The most common way that an L-1 visa holder obtains permanent residence in the United States is by applying for and receiving EB1C permanent resident classification.
The requirements for this classification are similar to the requirements for the L-1 visa (although more stringent), and like the L-1, the primary holder’s spouse and children (under 21) are eligible for this status as well.
Documentation
Following is a rudimentary list of some of the documents you may need to apply for L-2 status at a US embassy or consulate abroad:
- The primary L-1 visa holder’s approval notice from the USCIS (Form I-797).
- Form DS-160 (Online Nonimmigrant Visa Application). When you complete this form online, you will also be issued a confirmation. Be sure to print both
- Form DS-160 and the confirmation.
- A passport with at least one blank page, that is valid for the entire requested period of stay in L-2 status.
- At least one passport-style photo.
- The original of your marriage certificate, if you are the spouse of the primary L-1 visa holder.
- An original of your birth certificate, if you are the child of the primary L-1 visa holder.
- A written approval of the primary L1 visa holder, expressing his desire for you to accompany him to the United States.
- An employment verification letter issued by the primary L1 visa holder’s employer.
- Visa application fee ($190 at the time of this writing).
- Other financial data of the L1 visa holder, if the L1 visa holder is already working in the US.
ver 100,000 L-1 visas are granted each year. Unlike certain other employment-based visas such as the H-1B, there is no numerical restriction on the total number of visas that can be granted. Not all L-1 visa petitions are accepted, however — the application package, including supporting documentation, must be assembled with care. The assistance of a skilled immigration lawyer could make the difference between an acceptance and a rejection.
NOTE: If you are a Canadian citizen, check the most recent information online. Canadians often enjoy simplified application procedures compared to other nationalities, although the rules change from time to time.
What You Must Prove
To know which documents to submit, you need to understand what you are trying to prove. For the L-1, you must prove:
- Both the US company and the foreign company are viable, legally established entities (special rules apply to opening up a new office in the US).
- There is a “qualifying relationship” (as defined by US immigration law) between the foreign company and the US company.
- You have worked for the foreign company on a full-time, continuous basis for at least 12 months during the 36 consecutive months immediately prior to your L-1 filing date.
- Your job duties during the aforementioned 12-month period fit the legal definition of a manager or executive (L-1A) or a “specialized knowledge” employee (L-1B).
- You have been hired by the US company to work as a manager or executive (L-1A) or a “specialized knowledge” employee (L-1B).
Stage 1: Document Preparation
Following is a list of documents that you will probably need to submit. You may need to submit others as well, depending on the facts of your case.
Foreign Company Documents
- Articles of incorporation, certificate of incorporation or other organizational document;
- Share certificates;
- Company tax returns;
- Company financial statements;
- Copy of office lease, especially if the company is opening a new office in the United States;
- Business promotional and advertising materials;
- Organizational chart;
- Photographs of the company business premises (“virtual offices” are frowned upon);
- A statement from an authorized company representative detailing the company’s ownership and authority structure.
US Company Documents
- Articles of incorporation or its equivalent (articles of organization for an LLC, for example);
- Share certificates;
- Local business license;
- Copy of corporate by-laws;
- Detailed business plan;
- Organizational chart;
- Company financial statements;
- Company advertising and promotional materials;
- A statement from an authorized company representative detailing the company’s ownership and authority structure.
Documents to be Prepared by the L1 Employee Beneficiary
- Personal resume;
- Copy of passport including photo page;
- An explanation of your job duties with foreign company, detailing how much time you spent performing each duty;
- An explanation of your proposed job duties with the US company, detailing how much time you will spend performing each duty;
- Evidence proving the length of time you were employed with the foreign company (bank statements, for example, if your pay was deposited directly into your bank account).
Filing the Initial Petition
The US employer must file the initial L-1 petition with the USCIS. This petition includes Form I-129 plus the L supplement along with the various supporting documents mentioned above, along with a filing fee of $460. The free must be paid by by check or by a money order drawn on a financial institution located in the US and payable in US dollars. The instrument must be made out to the “Department of Homeland Security.”
Once this package is mailed to the USCIS, you must wait for two notices (i) the Acceptance Notice, proving that the USCIS has filed your application; and (hopefully) (ii) the Approval Notice, notifying you that the USCIS has accepted your application. Once you are in L-1 status, however, be aware that if you leave the US, you will need an L visa issued by a US embassy or consulate to re-enter the US (except for certain limited excursions to Canada or Mexico).
If you are located abroad at the time your I-129 is accepted by the USCIS, you will still need to obtain an immigraiton visa to enter the US (see below).
Change of Status or Issuance of Visa Abroad
If you are not in the US, locate the US embassy or consulate nearest your home. You will need to file Form DS-160 with the embassy or consulate, along with supporting documents. The embassy or consulate will schedule an interview with you. If the interview is successful, an immigration visa will be stamped onto your passport and you will be permitted to enter the US in L1 status.
The L-1 visa is a nonimmigrant visa with strict time limitations. Nevertheless, it is also a dual intent visa, which means that it is OK to seek permanent residence while you are in the US in L-1 status. You can also seek permanent residence for your spouse and children. Following is a brief description of how you might go about obtaining permanent residence in the US starting from L status.
The EB-1C Immigration Visa
To obtain a green card, you will need to apply for lawful permanent residence in the US based on a particular immigrant visa classification. You will then need to submit an immigration petition to the USCIS, obtain USCIS approval, and then either adjust your status to permanent residence within the US or apply for an immigrant visa at a US embassy or consulate overseas.
The EB-1C immigration visa is very similar to the L-1A visa, with the major difference being that if offers permanent residence instead of temporary worker status. It is for this reason that if you came to the US in L-1A status, the EB1C visa may well be your best bet. L-1B holders may face somewhat more difficulty (see below for details).
Similarities Between L1A and EB1C Requirements
The requirements for obtaining EB1C immigration status are almost the same as the requirements for obtaining L-1A status. Both statuses require a qualifying relationship between a US company and a foreign company, one year or continuous employment overseas, and a job description of manager or executive.
Differences Between L1A and EB1C Requirements
Although the L-1A and the EB1C are quite similar in many respects, important differences do exist:
- Although L-1A status allows you to transfer to a new office, EB1C status requires your office to have been doing business for at least one year prior to your application filing date.
- Since EB1C status allows you to remain in the US permanently while L status does not allow you to remain more than 7 years, you can expect that the USCIS will scrutinize an EB1C application for more thoroughly than it will an L-1A application. Having an approved L-1A application does not guarantee that your EB1C application will be approved. You will need to pay particular attention to your supporting documentation — the company business plan, for example.
- Another important difference between the L-1 visa is that you can obtain one on the basis of specialized knowledge without serving as an executive or manager. This option does not apply to EB1C applications (although it is not necessarily impossible for an L-1B holder to obtain EB1C status — see below).
If You are Starting from L-1B Status
If you are currently in L-1B status as a specialized knowledge employee, instead of in L-1A status as a manager or executive, you may face additional hurdles obtaining EB1C status. Under certain circumstances you may have to abandon your application altogether and seek immigration under another status. Under many circumstances, however, you can successfully transition from L-1B status to EB1C status.
The trick here is to be able to take your work as a “specialized knowledge employee” and show that it also fits the definition of “manager or executive.” You will need to do this even if you are applying for EB1C status as a manager or executive, because you must show an employment history as a manager or executive.
One way (among others) that you might do this is by taking advantage of the fact that an L-1A employee can be classified as a “manager” even without any subordinates to manage, as long as he heads a key department in the company (such as R&D). If you headed a key department as a “specialized knowledge employee”, it might not be so difficult to re-characterize this position as the manager of a “key department”, even without subordinates to manage.
Application Process
The general procedure for moving from L-1 status to EB1C status is:
- Have your employer file Form I-140 with the USCIS on your behalf;
- Wait for your USCIS Approval Notice to arrive in the mail;
- File Form I-485 with the USCIS (if you are in the United States) or file form DS-260 with your nearest US embassy or consulate (if you are outside the United States). If you file from overseas, your immigration visa will be stamped onto your passport to allow you to enter the US. In both cases, your green card will be mailed to your US address.
Other Options
Depending on your qualifications, you might also be eligible for immigration under the EB-2 or EB-3 visa categories (requiring labor certification) or under the EB-5 (investor) or EB1A (extraordinary ability) visa.
To obtain an L-1 intracompany transferee visa for an employee you wish to transfer to the United States, you will need to submit your company’s business plan to the USCIS during the application process (unless you have already submitted one for a previous L-1 visa application). The plan must be thorough and well thought out. US immigration authorities have provided some guidance on what constitutes a good business plan, at least for EB-5 immigration status.
Necessary Documents to Gather
To create your company’s business plan, you will need to gather at least the following documents:
- Foundational documents (articles of incorporation or articles of organization, for example).
- Proof that you own or lease your business premises (a lease or a deed, for example).
- Complete financial statements of the foreign company for each of the past 3 years including balance sheets; income statements; cash flow statements; and shareholders’ equity statements.
- Foreign company’s organizational chart.
- Resume of the L-1 visa applicant.
- Resumes of employees who occupy your company’s management positions
- List of capital invested, expenses already incurred and remaining working capital.
- Documentation of the relationship between the US company and the foreign company (parent/subsidiary, for example).
- Other documents are required in your particular case.
General Requirements
A good rule of thumb is that the business plan you submit to the USCIS should run at least 25 pages. It should include:
- A complete executive summary. Your executive summary should introduce your company, its industry, its operations and its objectives over the next five years. It should also emphasize the company’s ability to create jobs. Remember, your executive summary is a sales pitch, and it could make or break your application.
- Financial projections for at least the next five years of the company’ operations. These projections should include a start-up table (for a new company), a profit & loss statement and a balance sheet.
- Personnel expansion plan, including minimum educational requirements and proposed salaries.
- Thorough market and industry analyses.
- A complete marketing plan.
- Job descriptions for each employee or (for a large company) each position.
- Action plan for the next year of the company’s operations.
- Other information that is specific to your company and to the reason you are seeking to sponsor an L-1 employee.
Details
In addition to the foregoing content, your business plan should:
- Provide enough detail to persuade the USCIS that your company can create jobs in the United States. This one factor has the potential to generate quite a bit of traction with the USCIS.
- Describe in detail your company’s industry, market position, organizational structure, personnel (including job responsibilities and the experience level of key employees) and labor costs.
- List the exact amount of capital that has been invested (or will be invested) in the company, and describe in detail the source of this capital. You will need to prove that the capital invested in your company comes from a legal source, and show how the invested capital is at risk if the business fails.
- Include a well-documented, well-researched market or industry analysis that describes your company’s target market and customers.
- A detailed analysis of the US company’s market competitors, including potential competitors.
- A detailed sales and marketing strategy.
- A clear explanation of how your business operates and how your company’s products are monetized.
Avoid making any claims that you cannot back up with independent evidence — pretend, for example, that you are making an SEC filing. None of the information you provide should be in any way inconsistent with other information contained anywhere in the L-1 visa application. Ideally your business plan should be prepared by a professional who understands the requirements, and reviewed by a competent immigration lawyer with experience handling L-1 applications.
Contents
- Introduction
- Who is Eligible for an L1 Visa?
- Qualifications for Employers
- What is a “Qualifying Relationship”?
- What is an L-1A Visa?
- What is an L-1B Visa?
- Period of Stay
- Spouses and Dependents
- Permanent Residence/Dual Intent
- Blanket Petitions
- How Long Does it Take to Get an L1 Visa?
Introduction
The L-1 visas are nonimmigrant work visas designed for intracompany transferees. They allow aliens (foreign nationals) who are already employed in a managerial, executive or professional capacity to transfer to a US company or office of the same employer or its affiliated entity (another US company that enjoys a “qualifying relationship” with the beneficiary’s overseas employer). Family members are allowed to accompany the employee on an L-2 visa.
Who is Eligible for an L-1 Visa?
To obtain an L-1 visa, you must:
- Be serving or have recently served as a manager, executive, or specialized employee in a multinational company;
- Have worked for the multinational in one of the above-mentioned positions for at least one year (12 continuous months) out of the most recent three years (36 months) prior to transferring to the United States; and
- Intend to perform a similar role with the same employer or an affiliated entity after transferring to the U.S.
Your US employer must file Form I-129 on your behalf–you cannot file it on your own. An immigration lawyer can help gather the necessary information and prepare your petition in the most effective manner.
Educational Requirements
Unlike certain other employment-based visas such as the H-1B, there are no formal educational requirements for foreign workers to obtain L-1 visas. Of course, there may be some practical requirements — your employer is likely to require a certain level of educational attainment before hiring you as an executive, for example. Additionally, the higher your educational attainment, the more persuasive your L1 visa petition is likely to be.
Owner-Entrepreneurs
It is possible to qualify for L-1 status as the sole owner or majority shareholder in your company. To do this, you will have to be hired as an employee of the company (CEO, for example), and your transfer will have to be authorized by your company’s board of directors. This can get tricky, especially in terms of the documentation you will have to provide. You may need the assistance of a law firm that is intimately familiar with L1 immigration law.
Qualifications for Employers
To sponsor an L-1 visa for a temporary employee, the sponsoring employer must:
- Enjoy a “qualifying relationship” with a company that is established and doing business under the laws of a foreign jurisdiction (the nationality of the company’s owners is generally irrelevant); and
- Currently be doing business as a US employer (or, in the case of a new office, preparing to do business), either directly or through a ‘qualifying organization’. “Doing business” doesn’t necessarily have to mean international trade.
The US sponsor must continue meeting the foregoing qualifications for the duration of the visa beneficiary’s stay in the United States in L-1 status. “Doing business” means earning revenue through the provision of goods and services on a regular, systematic basis. A mere formal presence abroad, such as a representative office, is not enough. Size matters — companies with fewer than five employees are unlikely to be considered eligible to sponsor an L-1 visa employee.
What is a “Qualifying Relationship”?
A “qualifying relationship” for L-1 USA visa purposes means:
- A parent/subsidiary relationship. In this case, the parent must own at least 50 percent of the subsidiary.
- One of the parties must be a branch office of the other parties.
- An affiliate relationship. Two companies are affiliates if the same company, individual or group of individuals owns and controls both of them.
What is an L-1A Visa?
An L-1A visa category is one of the two types of L1 visas available (the other type is called an L-1B visa). The L1A visa allows a U.S. employer to sponsor an executive or manager from one of its affiliated entities (an entity with which it enjoys a qualifying relationship) to one of its offices in the United States. A foreign company that intends to establish a US office can also send a manager or executive to the US to establish a new office.
What is a “Manager”?
A manager is someone who:
- Supervises the work of at least three workers in managerial, supervisory or professional roles within the company;
- Has the authority to hire, fire and recommend; and
- Directs the day-to-day operations of the company
An employee can also be classified as a manager even without supervisory authority if he heads a key department such as R&D.
What is an “Executive”?
An executive is someone who:
- Oversees day-to-day operations. At least two tiers of authority must exist below him (lower management and rank-and-file employees, for example).
- Establishes policies, procedures and goals for the company.
- Enjoys the discretion to make executive-level decisions, either within the company or on behalf of the company’s dealings with third parties.
- Supervises senior employees and is subject to only general supervision from his superiors (directors and stockholders, for example).
Establishing a New Office With an L1A Employee
One of the primary benefits of the L1A visa is the ability to send a qualifying employee to the United States to establish a new office. To do this, the sponsoring employer must:
- Prove that it has already acquired the physical premises to establish the new office. This is generally accomplished through ownership or lease of physical property. Virtual offices are looked on with suspicion.
- Prove that it possesses the financial means to begin business operations and to pay the employee during his entire period of stay. If a parent company is establishing the new office, for example, a resolution from the board of directors pledging sufficient funding can be used (assuming that the parent company’s financial resources are sufficient).
- Submit a well-researched and thorough business plan that includes a description of the organizational structures of both offices.
- Prove that the office has already acquired any licenses or permits required for its operation.
- Obtain a federal Employer Identification Number (EIN) from the Internal Revenue Service.
What is an L-1B Visa?
An L-1B visa category is the functional equivalent of the L-1A visa, except that it is designed not for managers and executives, but for employees with specialized knowledge. Specialized knowledge” means:
- A deep understanding of the company’s products, services, business techniques, research, management, and other important company functions or assets as they are used to compete in international markets.
- Knowledge that is unique to the extent that other company employees with similar experience and expertise within the company or within the company’s industry do not possess it.
- Knowledge that is uncommon in international markets and that is critical for the company to navigate important issues that affect its US business interests.
Sending an L-1B Employee to a New Office
It is somewhat easier to send an L-1B employee to a new US office than it is to send an L-1A applicant. The company must prove that the office has secured physical premises, that the employer has the financial capacity to remunerate the L-1B employee, and that the company has the financial capacity to commence operations in the US.
Period of Stay
The holder of an approved L-1A visa is granted three years in the United States,with extensions possible in increments of two years up to a maximum of seven years. An executive or manager coming to the US to establish a new office is typically granted only one year instead of three years, but his period of stay is still extendable up to seven years. An L-1B visa holder is also granted a stay of three years stay (one year for a new office); however, the L-1B is extendable to a maximum of only five years.
Unfortunately, L-1A and L-1B visa holders cannot extend past the foregoing limits — they must either adjust their status in the United States, go abroad and re-enter the United States on another type of visa, or spend another one year working overseas before they are able to apply for another L1 visa.
Spouses and Dependents
An L1 visa holder is even allowed to bring his spouse and children (under 21) to stay in the US for the duration of his own visa status. Other relatives cannot qualify for an L-2 visa, however. Eligible family members must apply for and receive an L-2 visa. Although a spouse may also work in the US after applying for and receiving an Employment Authorization Document, the children may not work in the US on L-2 status.
Permanent Residence/Dual Intent
One of the most convenient features of the L-1 visa is that it is considered a “dual intent” visa. What this means is that:
- You do not have to maintain a permanent foreign residence while you are in the US.
- You cannot get into trouble with the USCIS for applying for lawful permanent residence (a “green card”).
- You may obtain a green card without having to leave the US, provided that you qualify for lawful permanent residence under whatever basis your green card petition relies on.
The dual intent doctrine also applies to L-2 visa holders, meaning that if you obtain a green card, your family members can potentially obtain green cards as well.
Blanket Petitions
A company that otherwise qualifies to sponsor an L1 visa beneficiary may file a blanket petition for an entire team of employees at the same time, with one application and one filing fee, as long as:
- The U.S.-based company office has been in business for at least a year;
- The petitioner maintains a least three US and foreign branches, affiliates, or subsidiaries; and
- The petitioner, along with its affiliated foreign companies, have obtained at least 10 L1 approvals over the past year; or they have U.S. affiliates or subsidiaries with at least $25 million in annual sales; or they employ at least 1,000 workers in the US.
Each visa applicant must present himself before a United States embassy or consulate outside the US to obtain the visa, and the applicant may be refused a visa if the officer believes issuing one would be inappropriate for some reason.
How Long Does it Take to Get an L1 Visa?
The entire L1 process generally takes six months to a year, although blanket petitions are typically faster than individual petitions. If you elect Premium Processing, however (which requires a fee of $1,410 in addition to the normal $460 processing fee), you are guaranteed a decision within 15 calendar days. If no decision is made during that time, the processing fee will be refunded.