L-1 Intracompany Transferee

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 affiliates qualify to petition for an L-I Intracompany transferee visa. These definitions are very precise and require an analysis of both the foreign and US ownership of the companies. Both the foreign and US operations must be doing business for the entire time that the L-I 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.

According to USCIS, the most common affiliate relationship is analogous to the inter-relation of siblings through their common parent. Thus, two subsidiaries of a "parent" company would qualify as affiliates of each other. The affiliate relationship is due to the ownership and control of both subsidiaries by the same legal entity. Affiliation also exist between legal entities where an identical group of individuals own and control both businesses in basically the same proportions or percentages. Associations between companies based on factors such as ownership of a 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 do not create affiliate relationships between the entities for L purposes.

Each case must be well documented with evidence proving all of the legal criteria are met.

Which Employees Qualify as L-I Intracompany Transferee?

Intracompany 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 to the organization's product, service, research, equipment, management, or other interests, and its application in international markets, or advanced knowledge or expertise in the organization's processes 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 intracompany transferee petition always should be structured to allow the easiest transition to permanent resident status.

The specialized knowledge for L-1B petition include: 

1.     Knowledge that is valuable to the employer's competitiveness in the market place;

2.     Knowledge is qualified to contribute to the United States operations as the knowledge of foreign operating conditions is not generally found in the United States;

3.     Knowledge gained from significant job assignments outside the United States that have enhanced the employer's productivity, competitiveness, image, or financial position;

4.     Knowledge which, normally, can be gained only through prior experience with the employer's overseas operations;

5.     Knowledge of a product or process which cannot be easily transferred or taught to another individual.

*****     In addition to demonstrating the complexity of the knowledge and the fact that the knowledge is not generally found in the industry, it is necessary to determine the extent to which the petitioning entity would suffer economic inconvenience or disruption to its U.S. or foreign-based operations if it had to hire someone other than the particular overseas employee on whose behalf the petition was filed. In other words, an important factor, for L-1B purposes, is the degree to which the alien's knowledge contributes to the uninterrupted operation of the specific business for which the alien's services are sought. As noted above, the petitioner must also establish that alien has such specific knowledge of the employer's services, product or processes that it would be burdensome, or counterproductive to the petitioner's business plan, to hire someone other than the alien to fill this position in the United States.

A key qualification for all employees is continuous employment abroad by a qualifying foreign employer for one year within three yeas preceding the time of the employee's application for admission into the United States.

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.

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 Sates.

Many L-1 applications were denied for failure to establish the L-1 intracompany transferee will come to work in the managerial or executive capacity. 

USCIS routinely requested the following information and documentation to evaluate if the L-1 intracompany transferee will work in the managerial or executive capacity in the United States:

1.   Lease and photos of the U.S. office

2.   Organizational charts and other employees' credentials and      duties at the U.S. and overseas operations

3.   Most recent corporate income tax returns of both companies

USCIS has denied many L-1 applications simply because the L-1 intracompany transferee only supervised 2-3 employees working as the secretary and assistants.  In brief, USCIS would like to see there are at least 2-3 professionals under the L-1 intracompany transferee's supervision.

Therefore, those who are serious about the L-1 and the subsequent PR applications should pay close attention to ensure the U.S. staffing and the size of operation would satisfy USCIS�Erequirements.

Spouses and unmarried children under 21 years old of Intracompany transferees may be granted L-2 visa. An L-2 visa holder is permitted to work in the United States.

L-1 Petition Information Sheet

1. Employment Information:

    Job title, job location, salary and duties. 

2.  Personal Information:

3.  Documentation from the L1 Beneficiary

3b.  Documentation from L1 Qualifying Corporations

       Parent/Subsidiary Overseas:

1.  Business License

2.  Financial Statements

3.  Brochure/Corporate Profile

4.  Other documentation to establish the scale of operations

       U.S. Corporation:

1.      Certificate of Incorporation

2.  U.S. Tax Return/Financial Statements

3.  Stock Certificates or other documents indicate the ownership  

     or other qualifying relationship between the two companies.

4.  Organizational Chart

5.  Lease or Deed for the business premises in the United States

6.  Business license/permit

7.  Other documentation to demonstrate the size of U.S. 

B.   For qualifying organizations, a majority stock ownership in both companies sufficient. Less than major ownership, but control, may be sufficient to qualify relationship as subsidiary/affiliate. Contractual relationship (e.g., licensing/franchising) is generally not sufficient to establish necessary relations.                                              

C.  The employer cannot transfer someone to work here without U.S. business entity having control and paying salary. For example, if a foreign construction company mans a project in the U.S. with a workforce sends to the U.S. from a foreign country, the workers are not eligible for L visas.

D.  First line supervisors are not considered managerial unless the employees they supervise are professionals.