L VISAS FOR INTRA-COMPANY TRANSFEREES

1. Definition:

   • Alien must be continuously employed abroad for one of the past 3 years by parent, affiliate or subsidiary of U.S. company preceding his application for admission. The Immigration Act of 1990 eliminated the "immediately preceding" requirement, so that a person may now be transferred into the U.S. if s/he worked for the entity abroad continuously for one year at any time within the preceding three years.

   • Employment by a firm, corporation or other legal entity or its affiliate or subsidiary which may include profit, nonprofit, religious, charitable organizations. The form of the entity is not relevant.  

   • Alien seeks to enter U.S. temporarily to continue to work for same employer or its affiliate or subsidiary. The employee is not required to perform full-time services in the U.S. but must dedicate a significant portion of his or her time on a regular and systematic basis.

   • Must continue to work in capacity that is managerial, executive or involves specialized knowledge. 

   • The presumption of immigrant intent is no longer applicable to Ls.

2. One Year Employment Requirement:

   • One year cannot be met by working part of year for affiliate or branch in U.S.  But time spent in U.S. will not interrupt one year. (For example: Five months training in U.S. and then seven months abroad with corporation is sufficient). Also, time spent in U.S. in another status (e.g., H-1B) in excess of 3 years does not interrupt the one-out-of-three year requirement if the companies have qualifying (e.g. parent-subsidiary) relationship. 

   • Part-time employment: Can only use combination of part-time employment to meet one year continuous requirement if part-time work is for affiliated companies (i.e. parent, subsidiary, branch).

3. Compensation.

   1. Employment does not necessarily depend upon amount or existence of a salary. [Power of control over employee's activity rather than salary is essential element].

   2. Payment by foreign or U.S. company is not material. 

   3. There is no prevailing wage requirement, and therefore consular officers should only determine whether person would be public charge. 

4. Temporariness:

   • The extent that "temporariness" will continue to be a factor may be lessened as a result of the: recognition of the doctrine of "dual intent" for L petitions under the Immigration Act of 1990. .

   • Factors in Determining Temporariness:

     1. U.S. operation limited.

     2. Beneficiary's commercial interests require his departure.

     3. Specific showing that beneficiary's services have temporary limits.

     4. U.S. company's operation after departure of beneficiary.

5. Affiliation/Subsidiary .

   • Factors:

     1. Common name.

     2. Regular sharing and exchange of personnel.

     3. Cross directorship.

     4. Sharing of technical, financial and research skills.

     5. Size and general recognition of organization.

6. The L visa holder must be rendering services to same employer.

   • Must have employment relationship with U.S. company. Cannot transfer someone to work here without U.S. business entity having control/salary. For example, if a foreign construction company mans a project in the U.S. with a workforce it sends to the U.S. from a foreign country, the workers are not eligible for L visas.

   • If U.S. company is less than 1 year old it must show proof of physical premises (lease/deed).

   • Both-U.S. and foreign company must be active. 

     1. Doing business requires activity not just registration of business or office.

7. L Status holder must continue to Work in Managerial, Executive or Specialized Skill.

   • Must be manager, executive or worked in specialized skill abroad; need not be same here. [Specialized knowledge abroad, manager in U.S.]

   • Managerial capacity:

     1. Managerial capacity means an assignment with the organization in which the employee personally

        • manages the organization, department, subdivision, function or component;

        • supervises and controls the work of other supervisory, professional or managerial employees, or manages an essential function within the organization or department or subdivision of the organization;

        • has authority to hire and fire or recommend personnel actions (if another directly supervises employees), or if no direct supervision, functions at a senior level and

        • exercises discretion over day-to-day operations of the activity or function.

   Executive capacity means an assignment in an organization in which the employee primarily:

   1. Directs the management of the organization or a major component or function;

   2. Establishes goals and policies;

   3. Exercises wide latitude in discretionary decision making and

   4. Receives only general supervision or direction from higher level executives, board of directors or stockholders.

      In determining whether an individual is acting in a managerial or executive capacity, it shall take into account the reasonable needs of the organization, component -or function in light of the overall purpose and stage of development of the organization, component or function. The number of employees supervised is not determinative.

8. Specialized knowledge is defined to include a person who "had special knowledge of the company product and its application in international markets or has an advanced level of knowledge of processes and procedures of the company." 

   1. Not simply a skilled worker. Rather someone whose advanced level of expertise and proprietary knowledge of the employer organization's product, service, research, equipment, techniques, management or other activity is not readily available in the U.S. labor market.

   2. Characteristics of employee with "specialized knowledge" include: 

      • Possesses knowledge that is valuable to the employer's competitiveness in the market place;

      • Is uniquely qualified to contribute to the U.S. employer's knowledge of foreign operating conditions;

      • Has been utilized as a key employee abroad and has been given significant assignments which have enhanced the employer's productivity, competitiveness, image or financial position; and

      • Possesses knowledge, which can be gained only through extensive prior experience with that employer.

      Offsite work. This is a common practice and "is not in and of itself sufficient to warrant visa refusal."  Must determine whether person has specialized knowledge and whether petitioner or third party is controlling work. 

       

9. Specialized knowledge professional.  Person with specialized knowledge who is a member of the profession. 

10. Nature/Size of Company is Irrelevant.

    • Parent and subsidiary companies do not have to be in same business.

    • No size limitation of company.

    • No country limitation 

    • Can be transferred from one U.S. affiliate to another but must file new petition.

11. Procedural Aspects:

    • I-129 filed by employer (petitioner) with the INS service center that has jurisdiction. 

    • Petition is approved for 3 years. If its a new office, 1NS can only approve for one year, and thereafter must show compliance with managerial/ executive standards. To obtain first year approval petitioner needs to show that sufficient physical premises have been secured and that within one year business will support an executive or managerial position.  INS determines extension after first year looks to "number of employees, significant growth in cash flow, presence of significant customers and clientele, or similar elements ..."  There is a 7 year maximum for managers and executives and a 5 year maximum for specialized knowledge. A person may even travel abroad while an extension is pending if travel is less than 30 days. Approval via cable will be sent to appropriate consular post. Beneficiary must provide in writing why travel is legitimate and necessary. Extensions of stay given in 2-year increment

    • Expedited treatment under the Immigration Act of 1990 requires INS to render a decision on an L-l petition within 30 days after "a completed petition has been filed." 

    • Part- Time Employment. Transferees can work part-time for more than one subsidiary of the same international corporation. But to work at second company, this company needs to file new petition to establish qualifying relationship. 

    • Amendments to Petition: Must file amended petition with the INS where there are changes in the approved relationships, additional qualifying organizations and any information which would affect the beneficiary's employment.

      1. Changes requiring amended petition include (1) a significant change in beneficiary's duties (e.g., specialized knowledge to managerial/executive); (2) transfer from one company to another in same organization where beneficiary becomes employee of -new company; (3) changes in ownership; and (4) mergers. 

    • The approval of a Labor Certification or the filing of a preference petition shall not be the basis for denying an L-1 petition or extension.

    • Revocation: It is automatic where petitioner withdraws petition. It is on notice where petitioner must notify INS of any changes in the relationship. 

    • Spouse/Children - Receive L-2 visas. Spouses of L-1 can now apply for employment authorization with the INS.

    • Procedure to Obtain Blanket L-1 Approvals-

      1. Requirements:

         • Petitioner has office in U.S. for one year.

         • Petitioner has 3 or more domestic and foreign branches, subsidiaries or affiliates.

         • Combined U.S. annual sales of $25 million, U.S. workforce of 1,000 or received approval of at least 10 L petitions in last 12 months

      2. Procedure:

         • Obtain approval of blanket from Regional Service Center (RSC). All extensions, change of status must be filed with RSCs.

         • Petition initially approved for 3 years; must then apply for extension

         • Fill out Form I-129S, attach 1-171 C, and submit to consular officer to obtain visa (unless visa exempt). No longer required to file individual petitions for blanket L-Is. However, must continue to establish beneficiary's managerial, executive, or specialized knowledge professional qualifications in each case.

         • Blanket L procedures may not be used for specialized knowledge positions that are not "professional" in nature.

         • New petition is only required where ownership of firm changes or where there is a merger. New or amended petition is not required where beneficiary changes job duties or transfers from one firm to another in the same company. 

For further information, send your query to Aparna Davé.