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TRANSFER OF FOREIGN EMPLOYEES TO THE UNITED STATES
L-1
Intra-company Transferee
The smooth
transfer of your company's key employees to the United States is always of
great concern. Most executive, Managers and employees with specialized
knowledge can come to work in the United States using the L-1 intra-company
transferee visa. An introduction to that visa which includes changes made by
the Reform Act of 2004 is presented here. Be sure to consult with an attorney
experienced in immigration matters to see if this visa is appropriate for your
situation.
Which
Companies Qualify to Transfer Employees to the United States?
Which
Employees Qualify as L-1 Intra-company Transferees?
How
Long Can L-1 Employees Remain in the United States?
Restrictions
on Offsite Work
How
Does the Company Get an L-1 Visa for its Employees?
Green
Card Advantages
Which Companies
Qualify to Transfer Employees to the United States?
Only those
companies which exactly meet the Immigration Service's definitions of a parent,
branch, subsidiary or affiliate qualify to petition for an L-1 intra-company
transferee visa. These definitions are very precise and require an analysis of
both the foreign and U.S. ownership of the companies. Both the foreign and U.S.
companies must be doing business for the entire time that the L-1 employee is
working in the United States.
There are
provisions to allow a new office to open in the United States provided that
evidence is submitted to the Immigration Service to prove that the new office
has a suitable place to do business, a qualifying business structure exists,
and that the employer has the ability to pay the employee and to begin doing
business in the United States.
Each case must be
well documented with evidence to prove all of the legal criteria.
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Which Employees Qualify as L-1
Intra-company Transferees?
Intra-company
transferees are executives, managers and employees with specialized knowledge.
The definition of manager includes an employee who manages an essential
function of the business within a qualifying organization. Specialized
knowledge employees must have special knowledge of the organization's product,
service, research, equipment, management, or other interests, and its
application in international markets, or an advanced knowledge or expertise in
the organization's process and procedures. Classifying the employee in the
right category is important, particularly if the company might later want to sponsor
the employee for permanent residence. The intra-company transferee petition
always should be structured to allow the easiest transition to permanent
resident status.
A key
qualification for all employees is continuous employment abroad by a qualifying
foreign employer for one year within three years proceeding the time of the
employee's application for admission into the United States. One year of
employment must be full-time. Two years of half-time employment cannot
aggregate to meet the full-time requirement. The exception is when the
employees has worked part-time for several affiliates of the same employer, the
total time equaling full-time employment within the employer's organization.
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How Long Can L-1 Employees Remain in the United States?
The L-1 is a
temporary visa with specific Limitations on periods of stay in the United
States.
If the employee is
qualified as a manager or executive, he or she may remain in the United States
for up to seven years.
If the employee is
classified in the specialized knowledge category, he or she may stay up to five
years.
An exception to these
limits exists where the employment in the United States is seasonal,
intermittent or an aggregate of six months or less a year.
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Restrictions on Offsite Work
Changes were put
into place in 2005 that restrict offsite work by L1B employees. The employer
cannot place the L1B at a worksite other than the petitioning employer's
physical location in certain circumstances. Placement of an L1B working
primarily at a worksite other than the petitioner's premises is not allowed
where either (a) the work is primarily controlled and supervised by an employer
other than the petitioner or (b) the work performed is essentially
labor-for-hire, rather than related to specialized knowledge pertaining to the
petitioning employer.
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How Does the Company Get an L-1 Visa for its Employees?
A petition for an
L-1 visa must be filed by the company with the Immigration Regional Service
Center having jurisdiction over the place of intended employment. Except for a
company which is opening a new office in the United States, the initial
petition may be granted for a three-year period and renewed in two-year
increments up to the maximum permitted stay. New offices are limited to an
initial twelve-month period with extensions depending on the business
performance of the new office. Once the petition is approved, the employee may
apply for an L-1 visa at a U.S. Consulate abroad. If the employee is in the
United States and maintaining some other legal status, he or she may apply for
a change of status in the United States.
Spouses and
unmarried children under 21 years old of intra-company transferees may be
granted L-2 visas. A spouse holding L-2 visa may apply for working permit to
work in the United States. However, a child holding L-2 visa is not permitted to
work in the United States.
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Green Card Advantages
L1As in the
executive / managerial category generally are eligible, under employment-based
first preference, to obtain Permanent Residency on an expedited basis. The
cases are significantly faster, as there is no labor certification required.
The labor certification is the first, and often most difficult, stage in the
majority of employment-based permanent residence cases.
Additionally, the
L-1 category (whether L1A or L1B), as with the H1B category, enjoys the benefit
of "dual intent," meaning that individuals can apply for Permanent
Residence without jeopardizing their L-1 status.
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