L-1A / L-1B / Blanket Visas
Generally, a citizen of a foreign country who wishes to enter the United States must first obtain a visa, either a nonimmigrant visa for a temporary stay or an immigrant visa for permanent residence. The visa allows a foreign citizen to travel to a U.S. port of entry and request permission of the U.S. immigration inspector to enter the United States. Nonimmigrant visas ("NIVs") are issued to individuals who intend to remain in the United States temporarily. NIVs are designated by letters of the alphabet. The type of visa a foreign national is issued depends principally upon the nature of the foreign national's proposed activities in the United States, the duration of those activities, and in some instances, his or her nationality. It is often easiest to understand NIVs and their limitations, criteria, and characteristics by distinguishing them in terms of the principal activity authorized by the visa: (a) employment-based NIVs; (b) NIVs for students and exchange visitors; (c) NIVs for business visitors and tourists; and (d) other NIV categories including diplomats, international civil servants, and family relatives.
Temporary worker visas are for persons who want to enter the United States for employment lasting a fixed period of time and are not considered permanent or indefinite. Most of these visas requires the prospective employer to first file a petition with the U.S. Citizenship and Immigration Services ("USCIS"). An approved petition is required to apply for a work visa.
Intracompany Transferees (L-1)
L-1 visa status is granted to a foreign national coming temporarily to the United States: (a) to perform services in an executive, managerial, or specialized knowledge capacity; (b) for a U.S. company with a qualifying relationship to the foreign company; and (c) has worked for the foreign employer in an executive, managerial, or specialized knowledge capacity for at least one year in the preceding three years. The L-1 visa may be used by companies of nearly any size, provided that the requisite company relationship exists and the applicant satisfies the criteria for the visa category. Employees of startup companies in the United States may also be eligible for L-1 visas; however, the petition will be approved for only one year and, upon request for an extension, the applicant will be required to demonstrate the viability of the U.S. business.
L-1A visas are designated for multinational managers and executives. L-1B visas are designated for employees with specialized knowledge. Spouses and children of L-1 principals are given L-2 status and are eligible to apply for employment authorization.
The foreign company must be related to a U.S. company in a "qualifying relationship." This includes parent/subsidiary, affiliate, 50/50 joint ventures, and branch office relationships. The foreign company must continue to do business outside the United States. If the foreign company ceases doing business outside the United States, as a result of a sale, reorganization, or other transaction, the L visa is no longer valid. However, if only a portion of the international business ceases, and other overseas operations continue, then L visa eligibility will usually remain intact. The employee being transferred must have held an executive, managerial, or specialized knowledge position with the foreign company for at least one of the three years preceding the application date. The employee must perform executive, managerial, or specialized knowledge functions at the U.S. location. However, these may be different from the functions performed overseas provided they are still executive, managerial, or specialized knowledge functions. The U.S. employer must have a physical presence in the United States. There are no educational or additional experience requirements; however, the employee must be otherwise qualified to fill the position by virtue of prior education, training, or experience.
"Branch" means an operating division or office of the same organization housed in a different location.
"Subsidiary" means (1) 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 (2) owns, directly or indirectly, half of the entity and controls the entity; or (3) owns, directly or indirectly, less than half of the entity, but in fact controls the entity.
"Affiliate" means (1) one of two subsidiaries both of which are owned and controlled by the same parent corporation or individual, or (2) 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.
To qualify in an executive capacity, the employee must be hired to fill a position within the organization in which he or she primarily: (a) directs the management of the organization or a major component or function; (b) establishes the goals and policies of the organization, component, or function; (c) exercises wide latitude in discretionary decision-making; or (d) receives only general supervision or direction from higher-level executives, the board of directors, or stockholders of the organization.
To qualify in a managerial capacity, the employee must be hired to fill a position within the organization in which the employee primarily: (a) manages the organization, or a department, subdivision, function, or component of the organization; (b) supervises and controls the work of other supervisory, professional, or managerial employees, or manages as an essential function within the organization; (c) if other employees are supervised, has the authority to hire and fire, or recommend those or other personnel actions such as promotions and leave; (d) if no other employees are supervised, functions as a senior level employee within the organizational hierarchy or with respect to the function managed; (e) exercises discretion over day-to-day operations for the function for which the employee has authority. A first-line supervisor is not considered a manager merely by virtue of supervisory duties unless the employees supervised are professional.
To qualify for L-1B status, an employee must demonstrate specialized knowledge of the employer’s processes and procedures. Specialized knowledge means: (a) special knowledge possessed by a foreign national of the petitioning organization’s product, service, research, equipment, techniques, management or other interests, and its application in international markets; or (b) an advanced level of knowledge or expertise in the organization’s processes and procedures. "Specialized knowledge" refers to an employee who has the following characteristics: (a) Possesses knowledge that is valuable to the employer’s competitiveness in the marketplace; (b) is qualified to contribute to the U.S. employer’s knowledge of foreign operating conditions; (c) has been utilized abroad in a capacity involving significant assignments that have enhanced the employer’s productivity, competitiveness, image, or financial position; (d) possesses knowledge that normally can be gained only through prior experience with the employer; or (e) possesses knowledge of a product or process that cannot be easily transferred or taught to another individual.
Blanket L Visas
Blanket L visa petitions allow large multinational companies and frequent users of the L-1 visa classification to obtain a blanket approval of the qualifying relationship between the U.S. and foreign entities. With a blanket approval, companies do not file individual petitions on behalf of employees. Instead, they provide employees with evidence of the approved blanket petition, as well as a consular application package, and the transferee uses that evidence to apply for a visa at a U.S. consulate. The consulate then determines whether the employee meets the other criteria for L-1 status, including qualifying employment abroad and in the United States. Transferees under the Blanket L visa need to have worked for the company abroad for at least one year in the last three years. Specialized knowledge transferees under the Blanket L visa provisions are required to work in “professional” positions. This is understood to mean that the transferee must have at least a bachelor’s degree.
L-1 visa holders may work only for the petitioning employer. There is no minimum or maximum number of hours that an L-1 transferee must work. Salary for the L-1 transferee may come from either a U.S. or overseas source. The spouse and children of L-1 visa holders are granted L-2 status. L-2 spouses are eligible to apply for separate, unrestricted employment authorization.
Applying for a Visa
Before a foreign national may obtain L-1 status, the U.S. employer must first file a petition on behalf of the employee with the USCIS. Typically the petition is accompanied by detailed supporting material that addresses the substantive requirements for L-1 status, including the nature of the corporate relationship and a verification of the employee’s overseas and proposed U.S. duties. Upon approval of the L-1 petition, the employee may apply to the appropriate U.S. consulate overseas for an L-1 visa. Employees already in the United States in a different status who seek to change status to L-1 will be issued a new Form I-94 at the time the employer’s petition is approved. Processing times for petitions filed with a USCIS service center can vary from several weeks to a few months. Premium processing of L-1 petitions is available for an additional filing fee.
L-1A status is limited to a maximum period of seven years. L-1B status is limited to a maximum period of five years. Where an L-1B employee becomes a manager or executive at least six months prior to the expiration of the five-year L-1B period, the employee may change his or her status to L-1A and qualify for an additional two years of L status. Where the employer has been operating in the United States for at least one year, the employer’s L-1 petition will be approved on behalf of the employee for a period of three years, and the employee should be issued a new Form I-94 reflecting the full validity period. Petitions submitted by companies that have been operating in the United States for less than one year (e.g., a new office petition) are approved for only one year and must demonstrate that within that one year the business will support an executive of managerial position. In order to obtain a subsequent extension of a new office petition, the employer must demonstrate that physical premises have been secured, and that business is ongoing and viable. Intermittent L-1 visa holders who do not enter the United States regularly or for extended periods of time may be eligible to remain in L status indefinitely.
Applicants for visas should generally apply at the nearest U.S. Embassy or Consulate in the country where they live. It is important to apply for a visa well in advance of a planned travel departure date.
Completing Form DS-160, Online Nonimmigrant Visa Application, is the first step in the visa application process. After you have submitted Form DS-160, print the confirmation page and bring it to your interview. Next, pay the non-refundable visa application fee, if you are required to pay it before your interview. Then, make an appointment for an interview at the U.S. Embassy or Consulate where you pay to apply for your visa. You can learn how to schedule an appointment for an interview, pay the application processing fee, review embassy-specific instructions, and much more by visiting the website of the U.S. Embassy or Consulate where you will be applying. The wait time for an interview appointment for applicants can vary, so early application is strongly encouraged. During the visa application process, an ink-free, digital fingerprint scan will be taken. Some visa applications require further administrative processing, which takes additional time after the visa applicant's interview by a Consular Officer.
Evidence that the overseas company has established a subsidiary, affiliate, or branch office in the United States.
A detailed description of the services to be performed in the United States by the L-1 beneficiary.
Evidence that the L-1 beneficiary has at least one continuous year of full-time employment abroad with the overseas company in the last three years and evidence that this employment abroad was in a position that was managerial, executive, or involved specialized knowledge.
Evidence that the beneficiary's prior education, training, and employment qualify him or her to perform the intended services in the United States.
Evidence that sufficient physical premises to house the U.S. employer have been leased.
Evidence that the U.S. company has sufficient financial resources to support its business activities in the United States and pay the salary of the beneficiary.
In the case of a new business, evidence that within one year of approval of the L-1 petition, the U.S. operation will support an executive or managerial position as documented by a description of the following: The proposed number of employees and the types of positions they will hold; the size of the United States investment and the financial ability of the foreign entity to remunerate the L-1 beneficiary and support the U.S. company's conduct of business; and the size and staffing levels of the overseas company.
Although regulations require the USCIS to render a decision on an L-1 petition within 30 days after "a completed petition has been filed," the USCIS generally requires 90 to 120 days (or more) to adjudicate an L-1 petition. Government delays in processing times will vary, and may fluctuate widely in different regions of the country, however, under the "premium processing" program, the USCIS will guarantee a response to an L visa petition within 15 days, for the payment of an additional $1,410 filing fee. Once the petition is approved, it is forwarded to the U.S. Consulate in the beneficiary's home country for visa issuance. The L-1 beneficiary's spouse and unmarried children under 21 years of age are eligible for L-2 status. L-2 spouses are eligible to apply for employment authorization once they enter the U.S. Employment authorization is normally issued within about 90 days of the application for an Employment Authorization Document.
No assurances regarding the issuance of visas can be given in advance. Therefore final travel plans or the purchase of non-refundable tickets should not be made until a visa has been issued.
Unless canceled or revoked, a visa is valid until its expiration date. If your passport expires, you may use the valid visa for travel and admission to the United States along with your new valid passport containing the same biographic data. Do not remove the visa page. Instead, carry both passports together.
The transferring employee may be accompanied or followed by his or her spouse and unmarried children who are under 21 years of age. A spouse is eligible for work authorization and family members can attend school.
If the consular officer finds it necessary to deny the issuance of a visitor visa, the applicant may apply again if there is new evidence to overcome the basis for the refusal.
More detailed, case-specific advice is available from Matthews Immigration Group by scheduling a consultation.