L-1 VISA FOR INTRACOMPANY TRANSFEREE

If you want to start, buy, or expand a business in the U.S., the L-1 Visa may be ideal for your U.S. visa needs.

Overview. The L-1 visa is especially useful for business owners and immigrant entrepreneurs who want to start a new business, expand their existing business, or “test the waters” of doing business in the U.S. without a big investment. One can simply form a subsidiary or affiliate in the U.S. or open a new office and start transferring foreign employees under he L-1 visa.  No minimum investment and no set number of employees must be hired, however, the company has to show that after one year the company can support the activities of the L-1 visa holder. For more established foreign companies that are expanding or growing in the U.S., the L-1 Visa is also perfect for temporarily bringing an executive, manager (both covered by the L-1A visa), or employees with specialized knowledge or skills (covered by the L-1B visa) to the U.S. to fill a position. The foreign corporation must be a trading/operating corporation, not merely and investment corporation. An example of an investment corporation is a property owning corporation which merely owns a few rental properties and which does not require daily work on the part of employees. On the other hand, a development corporation that has developed many homes, buildings, commercial properties over a period of time and is constantly purchasing and developing property is a trading corporation.

Requirements for the L-1 Visa

1. A qualifying relationship must exist between the U.S. company and foreign company, such as parent company, branch office, subsidiary or affiliate.

Subsidiary
The U.S. corporation is the parent or subsidiary of the foreign corporation:
1. One corporation owns at least 50% of the other corporation and controls it.
2. One company owns less than 50% of another company but controls it (e.g. a public corporation).
Affiliate
1. Two entities are owned and controlled by the same parent or individual
2. The two entities are “owned and controlled by the same group of individuals, each individual owning and controlling approximately the same share or proportion of each entity.”

2. For the purpose of establishing a new office, the company must have secured a sufficient physical space to operate the business. The size of the office depends on the nature of the business. The company cannot operate the business from home.
3. A new office must be active and operating within one year after the L-1’s admission to the United States. Withing a year the business should complete the process of hiring additional employees, fulfillment of contract orders, having a revenue stream, or holding inventory, if applicable. There is no minimum dollar amount investment required to obtain this visa.
4. After 1 year the new office must support a managerial or executive position to qualify for an extension of stay in the L-1A classification.

Document requirements for L-1 Petition

1. To demonstrate qualifying relationship between new business and business abroad the applicant should show

• Articles of incorporation showing common ownership of the U.S. and foreign entities
• Business licenses or other documents showing common ownership of the U.S. entity
• Annual reports describing the corporate structure
• Contracts or other documents detailing the affiliate relationship
• Corporate filings  in the United States or abroad describing the corporate relationship
• Any other evidence demonstrating ownership and control over the U.S. and foreign entities (i.e., stock purchase agreements, voting rights agreements, capitalization table, term sheet)
• Detailed list of the company’s owners
• Stock purchase agreement

2. To demonstrate that the qualifying organization employ the principal L-1 beneficiary abroad for 1 continuous year out of the 3 years before the time of petition filing (“one-year foreign employment requirement”). 

Specifically,

1) the L-1 beneficiary must be physically outside the United States during the required 1 continuous year of employment (although in certain cases brief trips to the United States do not interrupt, or break, the 1 continuous year); and

2) the petitioner and the beneficiary must meet all requirements, including the 1 year of foreign employment, at the time the petitioner files the initial L-1 petition.

The USCIS Policy requires that the one continuous year of qualifying employment must occur outside the United States. Brief trips to the United States for business or pleasure do not interrupt the one continuous year.

• Pay stubs
• Payroll records
• Tax returns that show employment
• Evidence of work product
• Travel records

 3. To demonstrate the employment was in a managerial, executive or specialized knowledge capacity includes:

• Organization charts showing the position
• Patents or other evidence of the company’s technology, products or services that are based on your work
• Performance reviews
• Loans/financing on behalf of the company
• Organizational job descriptions for the position and those positions that reported above and/or below
• Job duties
• Resume describing the job accomplishments
• Company letterheads
•  Executive or Manager must show that the the person spent the majority of his/her time managing other employees

4. To demonstrate the sufficient space and resources for business operations show

•  Lease or purchase
• Business plan or executive summary that shows the size of the U.S. investment and your ability to commence doing business in the United States.
• Explanation of how this location is sufficient for your business.

Use Form I-129, Petition for Non Immigrant worker to apply for L-1 Visa.

Extension of L-1 status after 1 year

After one year L-1B visa holder should request an extension of her status by demonstrating that new company is fully functioning and can support L-1 visa holder. The following list of documents should be provided:

• Purchase orders, contracts or other evidence of commercial activity
• Payroll records for employees hired
• Bank statements
• Financial reporting documents showing monthly income
• Continued venture capital or other third party investment contribution based on achieved milestones
• Media coverage of the busines
• Position descriptions providing the roles and responsibilities of all current employees, or other evidence which clearly demonstrates how the manager or executive is relieved of non-qualifying duties

L-1 Duration of Stay

L-1A managers and executives may work in the U.S. for up to seven years while L-1B individuals with specialized knowledge may work in the U.S. for up to five years, depending upon the individual’s qualifications and the company’s goals.

How to present your L-1 documents 

• Define specialized knowledge – put it in subject line
• Create diagrams and charts to illustrate your point
• Use percentages comparing to show time the prospective employee will spend in capacity of specialist and administrator
• Provide a list accomplishments
• Include relevant contracts
• Provide a list of workers under the manager and their corresponding resumes and salaries
• Wear a suit for immigration interview
• Be prepare to explain immigration and criminal

Can dependents (L-2) travel to the U.S. while primary VISA holder is outside of the U.S.?

L-2 dependents’ ability to remain in the U.S. on L-2 status (and for the spouse to be able to continue working with EAD) is directly dependent on the L-1B visa holder maintaining valid status by working for his L-1B employer. If an L-1 visa holder is not present in the U.S. , the L-2 dependent might not have the legal right to continue remaining here, and certainly not to work.

What is the proper procedure on admitting someone in a valid work visa status (i.e. H-1B, L-1) when that individual’s visa stamp is set to expire imminently (i.e. within a matter of days), yet the underlying petition on which they are seeking admission is not set to expire until far into the future (i.e. a year or two)?

The Visa only needs to be valid at the time of entry and not a factor in determining length of admission.

What documents are required for an admission?

• Passport valid for 6 months at time of entry, unless exempt.
• Non-immigrant visa (L-l), unless exempt.
• Must have evidence of approved I-129 petition in the form of a notation on the non-immigrant visa indicating the petition number and employer’s name, or a Notice of Action, Form I-797, indicating approval, unless the applicant is a Canadian citizen. In that case, the alien may file the I-129 at a Canadian pre-flight station or Canadian land border port-of-entry at the time he or she applies for admission. If arriving at an airport without having  been  inspected  pre-flight, a Canadian applicant must have evidence of a petition approval, Form I-797L-1
• If the alien is otherwise admissible as an individual L-1, admit for validity of petition (up to 3 years initially).
• If the alien is otherwise admissible as a Blanket L-1, initially admit for 3 years, regardless of the expiration date of the petition, provided the petition is valid at the time of the initial admission. First time admission blanket L-1’s should be getting 3 years, and on subsequent entries they are admitted until the expiration date on the I-129s.

Can I be co-founder of a tech start-up being on L1B visa?

As an L-1b you are approved to work only for your employer not any other company.

I am on an L-2 visa which will be expiring in six months.  My EAD for 2 years will expire in four months.  My husband’s L-1 visa and my L-2 visa extension are still in process and may take 2-3 months more. Can I apply for EAD renewal for a short period of 2.5 months since I have a valid visa?

It’s not worth it. Simply wait to apply for the extension of your L-2 status, which you could have applied for together with your husband’s L-1 extension application – it’s never too late.

I have an L-2 visa, and I lived in Florida.  I want to go on a Caribbean Cruise for 7 days . Will I have a problem?

If you have valid L visa you may return to the US from the Bahama’s without a problem.

Policy (November 15, 2018) PM-602-0167 

USCIS issued Policy Memorandum to clarify the requirement that the qualifying organization employ the principal L-1 beneficiary abroad for 1 continuous year out of the 3 years before the time of petition filing (“one-year foreign employment requirement”).

The one continuous year of qualifying employment must occur outside the United States The one-year foreign employment requirement is only satisfied by the time a beneficiary spends physically outside the United States working full-time for the petitioner or a qualifying organization. 5 A petitioner cannot use any time that the beneficiary spent in the United States to meet the one-year foreign employment requirement, even if the qualifying foreign entity paid the beneficiary and continued to employ the beneficiary while he or she was in the United States. Furthermore, the one continuous year of foreign employment must be qualifying; that is, the petitioner must demonstrate that the beneficiary worked abroad during that time period in a managerial, executive, or specialized knowledge capacity. Brief trips to the United States for business or pleasure do not interrupt the one continuous year While a qualifying foreign entity employs a beneficiary abroad, brief trips to the United States for business or pleasure in B-1 or B-2 status toll6 the one continuous year of employment abroad. Therefore, in such cases, officers should subtract the number of days the beneficiary spent in the United States from the time the qualifying foreign entity employed the beneficiary abroad. For example, if the qualifying foreign entity began to employ the beneficiary on January 1, 2016, and the beneficiary made brief trips to the United States that year for a total of 60 days, the beneficiary would need to accrue at least an additional 60 days of qualifying employment abroad after January 1, 2017, in order to meet the one-year foreign employment requirement.

Time the beneficiary spent working “for” the qualifying organization in the United States results in an adjustment of the three-year period for determining whether the beneficiary has met the one-year foreign employment requirement By regulation, time a beneficiary spent working in the United States “for” a qualifying organization does not count towards the one-year foreign employment requirement; however, this time does result in an adjustment of the three-year period (8 CFR 214.2(l)(1)(ii)(A)). A nonimmigrant in the United States will be considered to have been admitted to work “for” the qualifying organization if he or she is employed by that organization as a principal beneficiary of an employment-based nonimmigrant petition or application, such as H-1B or E-2 executive, supervisory, or essential employee. 7 For example, if a beneficiary worked in the United States in valid H-1B status for a qualifying organization from January 2, 2017, through January 2, 2018, and the petitioner filed for L-1 nonimmigrant status for the employee on January 2, 2018, the pertinent three-year period will be from January 1, 2014, to January 1, 2017. Periods of employment with the qualifying organization in the United States as a dependent or student do not result in an adjustment of the three-year period for purposes of determining whether the beneficiary has met the one-year continuous foreign employment requirement Conversely, the time a beneficiary spent working while in a dependent status will not result in an adjustment of the three-year period.8 For example, time spent by a beneficiary in L-2 status will not result in an adjustment of the three-year period, because the beneficiary was admitted as an L-2 to join the L-1 principal and not to work “for” a qualifying organization. Likewise, if a beneficiary was admitted as an F-1 nonimmigrant and later applies for optional practical training (OPT) employment with the qualifying organization, the time spent in F-1 nonimmigrant status will not result in an adjustment to the three-year period, because the purpose of admission was for study and not to work “for” the qualifying organization. Moreover, this would not change even if the qualifying organization financed the F-1 nonimmigrant’s studies. In neither of these instances should the three-year period be adjusted.9

Periods of time in the United States not working or working for an unrelated employer do not result in an adjustment of the three-year period during which the beneficiary must have been continuously employed for one year abroad Periods of time the beneficiary spent in the United States without working (except for brief visits for business or pleasure in B-1 or B-2 status), or while working for an unrelated employer, interrupt the one continuous year foreign employment requirement, and officers should not adjust the three-year period. The relevant point in time for an officer to determine whether a beneficiary satisfies the one-year foreign employment requirement is the date on which the petitioner filed the initial L-1 petition, regardless of when the beneficiary was, or will be, admitted to the United States. Note, that if a beneficiary takes a break in employment with, or stops working for, the qualifying organization as a principal beneficiary for a period of more than two years during the three years preceding the petition filing, then he or she cannot meet the one-year foreign employment requirement and is disqualified for L-1 classification. An otherwise eligible alien may again qualify for the L-1 classification following a new one-year period during which such alien is employed in a managerial, executive, or specialized knowledge capacity by the qualifying organization abroad.

Follow

Irina Vinogradsky on Google+!