A company may petition to temporarily transfer an alien to the United States who worked abroad for that company, a parent, affiliate or subsidiary for at least one year within the preceding three years as a manager, executive, or in a role requiring specialized knowledge. The US job must also be managerial, executive, or specialized, but may be in a different category than the work abroad.
Unlike the H-1B, there is no annual cap on L-1 visas and there is also no minimum salary based on industry wages (prevailing wages), or internal average corporate pay (actual wages), which makes the L-1 administrative burden and compliance issues easier than with H-1s.
The job must include productive employment on a regular basis. If the job includes activities alone, such as attending meetings and conferences or participating in training, it is not considered productive (i.e. it doesn't "produce" anything) and the applicant should apply for B-1 rather than L-1 classification.
The L-1 visa is valid for up to three years. Managers and executives (L-1A) may extend the L-1 for up to seven years, and specialized knowledge workers (L-1B) for up to five years.
To qualify, the transferee’s foreign and US employers must be related and must be doing business in the United States and at least one foreign country during the entire period of the alien’s stay in the United States as an L-1 transferee.
To qualify to petition an L-1 employee, the US company must be related to the transferee's foreign employer as a parent, branch, affiliate, or subsidiary company. Parent is defined as a legal entity that has subsidiaries. Branch is defined as an operating division or office of the same organization housed in a different location. An affiliate is one of two subsidiaries, both of which are owned and controlled by the same parent, individual or group provided that each individual owns or controls approximately the same share of the entity. A legal entity may qualify as a subsidiary under three definitions:
Doing business is the regular, systematic and continuous provision of goods or services by a business that has employees. A mere agent or office in the United States or abroad is insufficient.
The transferee must have worked abroad for one continuous year for a parent, branch, affiliate or subsidiary of the US employer in a job that is managerial, executive, or requires specialized knowledge. The job the transferee will fill in the US must also be in one of these capacities, but not necessarily the same capacity in the US as abroad. All three categories under which a transferee may qualify recognize technical professionals who manage functions or operations rather than other employees.
Periods spent in the United States in lawful status for a branch of the same employer, or a parent, affiliate, or subsidiary and brief trips to the US for business or pleasure do not interrupt the one year of continuous employment abroad, but these periods do not count towards establishing the year of employment abroad. 214.2(l)(1)(ii)(A).
The Immigration and Nationality Act defines managerial capacity as management of an organization, department, component or function. And to qualify under this provision the transferee must supervise and control other supervisory, managerial or professional personnel or manage an essential function. The transferee must also have the authority to hire and fire, or function at a senior level if he or she manages a function. Finally, the transferee must exercise discretion over operations or a function.
A transferee works in an executive capacity if he or she manages an organization or a major component or function of an organization. And this type of transferee should have the authority to establish goals or policies and enjoy wide latitude in discretionary decision making. The executive’s decision making should only be subject to general supervision from higher executives, the board of directors, or stockholders. However, the USCIS is supposed to consider the reasonable needs of the business and its stage of development in determining whether the transferee’s duties qualify. But sometimes you have to fight on appeal to get them to recognize this rule.
Specialized knowledge is knowledge of a company product and its application in international markets or an advanced level of knowledge of the company’s processes and procedures. This knowledge may relate to the employer’s competitiveness in the marketplace, and should capable of being learned only through extensive experience with that employer. It is helpful to show that the transferee had assignments that improved the employer’s productivity, competitiveness, image or financial position. Finally, the transferee should contribute to the US employer’s knowledge of foreign operating conditions.
There is one BIA decision holding that where the foreign parent, affiliate, or subsidiary will pay the L-1 worker's salary abroad while the US petitioner employs him in the United States, this relationship qualifies for L-1 status. Matter of Pozzoli, 14 I.&N. Dec. 569, Int. Dec. 2260 (1974).
In Pozzoli, IBM in the Silicon Valley petitioned for an operations research manager from IBM Italy to work in the United States for a period of years. IBM's petition noted that IBM Italy would pay the manager's salary in Italy while he was working in the United States. INS (the predecessor to USCIS) denied the petition reasoning that the US petitioner must pay the manager's salary in order to have a legitimate employer employee relationship.
The Board of Immigration Appeals reversed INS on appeal and granted the L-1 petition. The BIA noted,
...[T]he whole purpose and intent of legislation... was to facilitate transferring of key alien personnel freely within an organization having offices in the United States as well as abroad... The facts are that the petitioning corporation is the beneficiary's employer whether in Italy or in the United States. The question of where the beneficiary's paycheck may originate is not a relevant factor in determining the beneficiary's eligibility for the nonimmigrant classification sought in the petition before us.
The spouse and children of L-1 transferees are entitled to the same privileges as the L-1 transferee including visa extensions. The family dependents' status is dependent on the primary L-1 applicant and are responsible for extending their status separately from the L-1 worker. L-2 spouses are also authorized to work provided they first apply for and receive a work authorization card using Form I-765.
Larger employers that transfer many employees internationally may apply to issue their own L-1 certificates of eligibility to workers they want to transfer. Transferees may then take these certificates to the desired port of entry and receive a determination of qualifications. Customs and Border Protection (CBP) officer then makes a determination based on the whether the job and transferee and does not inquire about the entity relationship. The CBP officer will consider whether the employee worked in a managerial, executive, or specialized knowledge role abroad for at least a year and will work in one of these three roles in the US.
The L-1 blanket visa program save on legal fees, filing fees and administrative confusion. Companies may qualify in any of three categories if the company and all of its qualifying organizations have:
All qualifying organizations that make up the petitioning company must be engaged in commercial trade or services, and the petitioner must have a US office that has been doing business for at least one year. The petitioning company must also have three or more domestic and foreign branches, subsidiaries or affiliates.