L-1A Visa

L-1A Visa – Intracompany Transferee Executive or Manager

L-1A Visas enables a U.S. employer to transfer an executive or manager from its foreign office to its existing office in the U.S.  or to send an executive or manager to the U.S. with the purpose of establishing a new affiliated office in the U.S. An L-1A Visa is granted initially for one year for a new office in the U.S. or three years for a U.S. company with more than one year in existence with extensions available in two-year increments until the employee has reached the maximum limit of seven years.

Requirements for Obtaining L-1 Status

Requirements of L-1 Employer

To qualify for L-1 Visa petition, the employer must:

(1)  Have a qualifying relationship with a foreign company (i.e. parent company, branch office, subsidiary, or affiliate of the foreign company, collectively referred to as qualifying entities or qualifying organizations); AND

  • “Parent” means a firm, corporation, or other legal entity which has subsidiaries. Any business entity, which has subsidiaries, is a parent.
  • “Branch” means an operating division or office of the same organization housed in a different location. Any such office or operating division, which is not established as a separate business entity, is considered a branch.
  • “Subsidiary” means a firm, corporation, or other legal entity of which a parent owns, directly or indirectly:
    • More than half of the entity and controls the entity; or
    • Half of the entity and controls the entity; or
    • 50 percent of a 50-50 joint venture and has equal control and veto power over the entity; or
    • Less than half of the entity, but in fact controls the entity.
  • “Affiliate” means:
    • One of two subsidiaries, both of which are owned and controlled by the same parent company or individual; or
    • One of two legal entities owned and controlled by the same group of individuals, each individual owning and controlling approximately the same share or proportion of each entity;
      • (Note: subsidiaries are affiliates of each other.  The affiliate relationship arises from the common ownership and control of both subsidiaries by the same legal entity.  The following are not affiliate relationships for purposes of L1 Visas: ownership of small amount of stock in another company, exchange of products or services, licensing or franchising agreements, membership on boards of directors, or the formation of consortiums or cartels).

(2)  Currently be, or will be, doing business as an employer in the U.S. and in at least one other country directly or through a qualifying organization for the duration of the beneficiary’s stay in the U.S. as an L-1.

  • While the business must be viable, there is no requirement that it be engaged in international trade.
  • Doing business manes “the regular, systematic, and continuous provision of goods and/or services” and does not include the mere presence of an agent or office of the qualifying organization in the U.S. and abroad.

Requirements of L-1A Employee

To qualify for an L-1A Visa, the employee must also:

(1)  Have worked abroad in an executive or managerial position capacity for the overseas company for one continuous year within the three years immediately preceding his or her admission to the U.S.; AND

(2)  Be seeking entry into the U.S to provide service in an Executive or Managerial capacity for a branch/ subsidiary/ affiliate of the same employer;

  • “Managerial Capacity” means that the Applicant/Employee:
    • Manages the organization, or a department, subdivision, function, or component of the organization;
    • Supervises and controls the work of other supervisory, professional, or managerial employees, or manages 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 if other employee(s) are directly supervised by the Applicant.  If no other employee is directly supervised by the Applicant, the Applicant must function at a senior level within the organizational hierarchy or with respect to the function managed; and
    • Exercises discretion over the day-to-day operations of the activity or function for which the employee has authority.  A first-line supervisor is not considered to be acting in a managerial capacity merely by virtue of his or her supervisory duties unless the employees supervised are professional (i.e. hold bachelor’s degree or higher, and work in positions requiring such degree).
  • “Executive Capacity” means that the Applicant/Employee
    • Directs the management of the organization or a major component or function of the organization;
    • Establishes the goals and policies of the organization, component, or function;
    • Exercises wide latitude in discretionary decision-making; and
    • Receives only general supervision or direction from higher level executives, the board of directors, or stockholders of the organization.

 

Extension of New Office L-1A after 1 year

There are more detailed requirements to extend L-1A manager or executive status for “new offices” in the U.S. To determine whether to grant an extension after the first year, USCIS considers aspects such as the number of employees, growth in revenues, attainment of significant clientele, etc.

The L-1A extension petition must include the following evidence:

  • Evidence that the U.S. and foreign entities still have the required relationship and are still “doing business.”
  • The duties performed by the foreign national for the previous year and the duties he or she will perform under the extended petition.
  • The staffing of the new operation, including the number of employees and types of positions held accompanied by evidence of wage paid to employees when the foreign national will be employed in a managerial or executive capacity. The best evidence is copies of all IRS W-2 for employees and IRS 1099s for independent contractors. Also, an updated organizational chart showing the company’s employees and independent contractors can be helpful.
  • Evidence of the financial status of the U.S. operation. The U.S. operation’s federal tax return is particularly important. The operation’s U.S. bank statements for the year are also key. A current balance sheet and year-to-date income statement can be helpful too.

Given that during the foreign national’s first year in L-1A status the requirement that the applicant be doing “managerial” or “executive” duties is softened to allow the applicant to undertake the less glamorous duties associated with starting up the new office, the USCIS hopes to see evidence of significant growth in cash flow and customers consistent with the size of an enterprise employing a “manager” or “executive.” It can also be helpful to show that the company has met the goals for the first year set forth in the business plan in the initial L-1 petition and has invested the sums called for in the plan. In case of many small businesses, it is not easy to meet this requirement, so plans and backup plans need to be made starting from even before the “new office” L-1 petition is filed.

 

From L-1A Status to Green Card Status

Eligibility requirements for the EB-1C green card petition are so similar to the eligibility requirements to qualify for L-1A visa that L-1A visa provides a stepping stone to lawful permanent resident status under EB-1C category. Although there is no requirement for the alien to first obtain L-1A status, an applicant with L-1A visa working for the same company will have a stronger case for the EB-1C immigrant petition.

For more information on EB-1C, please click here.

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