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HR personnel representing L-1 visas for intracompany transferees for Shaftel Law
The L-1 non-immigrant visa category allows certain employees of a foreign company to come to the United States to work for a company that is sufficiently related to their foreign employer. The two types of L-1 visas are L-1A visas for executive and managers and L-1B visas for employees possessing company specific, specialized knowledge. L-1A visa status has a maximum duration of 7 years; L-1b visa status has a maximum duration of 5 years. If an individual remains outside of the U.S. for a year after holding L-1 status for 7 or 5 years, they become eligible for a new 7 or 5 year period of L-1 visa status.

L-1 visa status is the most common alternative to a H-1b visa; however, L-1s are only available to certain types of employees and these employees must have worked abroad for a related company for at least one full year before coming to the U.S.

The requirements to qualify for a L-1 visa are the following.

1. Qualifying Relationship Between a Company Abroad and a U.S. Company (or corporate entity). There must exist two companies or related corporate entities, one located abroad and one located in the United States. These entities need to be sufficiently related. As a general rule, the companies must share at least 51% common ownership. For example, if the U.S. entity is a wholly-owned subsidiary of the foreign entity or if the same person is a majority shareholder of both companies, then there will be proper affiliation. These are just two examples of how appropriate affiliation can be demonstrated.

2. The intra-company transferee must be a manager, executive or an employee possessing company specific, specialized knowledge. Additionally, the employee must be coming to the U.S. to work as a manager, executive or “specialized knowledge” employee.

3. Sufficient experience at the foreign company or entity (the “one in three” requirement). The employee must have worked at least one full year at the foreign company or entity as a manager, executive or ”specialized knowledge” employee within the three years preceding their arrival in the United States.

A Manager is an employee that:

– Manages the organization, or a department, subdivision, function, or component of the organization;

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

– Has the authority to hire and fire or recommend those as well as other personnel actions (such as promotion and leave authorization) if another employee or other employees are directly supervised; if no other employee is directly supervised, functions at a senior level within the organizational hierarchy or with respect to the function managed; and

– Exercises discretion over the day-to-day operations of the activity or function for which the employee has authority. A first-line supervisor is not considered to be acting in a managerial capacity merely by virtue of the supervisor’s supervisory duties unless the employees supervised are professional.

An Executive is an employee that:

– Directs the management of the organization or a major component or function of the organization;

– Establishes the goals and policies of the organization, component, or function;

– Exercises wide latitude in discretionary decision-making; and

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

A “specialized knowledge” employee is one that:

– has specialized knowledge of the petitioning organization’s product, service, research, equipment, techniques, management, or other interests and its application in international markets, or an advanced level of knowledge or expertise in the organization’s processes and procedures.

If the three requirements above are met, an employee should qualify for L-1 non-immigrant visa status.

New Office L-1 status: It is not required that the U.S. affiliated company already be established in order to qualify for L-1 status. A new U.S. company can be created that has the requisite qualifying relationship with the foreign company. Once initial steps have been taken to establish this new U.S. company, the foreign entity can transfer employees that meet the other L-1 requirements to the new office in the U.S. New office status is only granted for a period of one year. After the one year period, the company can apply for an extension of three (L-1A) or two years (L-1b). The purpose of the initial one year restriction on New Office L-1 visa status is to ensure that the company has grown within this initial one period to a sufficient size to justify a L-1A (manager or executive) or L-1b specialized knowledge employee. If a foreign company wants to transfer an employee to a U.S. entity that has conducted business for less than a year, the company must file for New Office L-1 status rather than for unrestricted L-1 visa status.

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