A company looking to petition an executive or manager to work in the U.S. must, among other requirements, demonstrate:
- It is related to the foreign worker’s employer as prescribed under statute and regulation i.e. the U.S. company is the overseas employer’s parent company, subsidiary, or has the requisite control and ownership relationship with its foreign branch or affiliate; and
- It is now or will soon be operating in the U.S. and for at least the period of admission being contemplated for the foreign worker as set forth in the petition being filed.
To be approved for an L-1A visa, the petitioned foreign worker must, among other requirements, demonstrate:
- They have been employed by the qualifying related overseas company for at least one year on a continuous basis, and within the three year window leading up to the start date of the proposed L-1A visa period of admission to the U.S. and
- They are intending to work in the U.S. as a manager or executive and for a U.S. employer with the required ownership connection to the worker’s foreign employer.
Executive: an executive position is one where the worker is given the power to engage in discretionary decision making and with only minimal supervision or oversight.
Manager: the role of manager is best described as one involving the exercise of supervision or control of workers considered “professionals” and/or to manage an aspect of the company, including a department, subdivision or function. A manager is also a higher level worker entrusted to oversee an essential function of the company and with little or no oversight of other workers.
For more information about the governing statute and regulations – see section 101(a)(44) of the Immigration and Nationality Act, as amended, http://uscode.house.gov/view.xhtml?req=granuleid%3AUSC-prelim-title8-section1101&num=0&edition=prelim
and 8 CFR 214.2(l)(1)(ii) https://www.law.cornell.edu/cfr/text/8/214.2.
A newly formed U.S. entity looking to facilitate the transfer of an executive or manager so they can be employed by the new U.S. organization must prove:
- That an adequate physical location has been secured so as to enable U.S. operations,
- That the petitioned worker was working in an executive or managerial capacity for one continuous year within the 3 year window leading up to the L-1A visa filing and
- That within a year of petition approval, the U.S. operation will be able to justify the need to have brought on the petitioned executive or manager to its U.S. workforce. For more details see 8 CFR 214.2(l)(3)(v) https://www.law.cornell.edu/cfr/text/8/214.2 and OI 214.2(l) https://fam.state.gov/fam/09FAM/09FAM040212.html for details.
Workers petitioned to support a new operation are allotted an initial period of admission of 1 year. For U.S. entities operating for more than a year, its petitioned executive and managers are allotted an initial period of admission of 3 years. The stay of L-1A workers can be extended by company petition for 2 year periods at a time and toward a maximum of 7 years, unless the company takes measures to allow the worker to stay permanently on a green card via an I-140 Immigrant Worker Petition.
Certain companies will qualify to present evidence of the requisite international company relationship in advance of filing L-1 petitions for certain individual employees. These petitions are known as Blanket Petitions, and to establish eligibility, the company must document that:
- The U.S. company and its related companies conduct a requisite level of commercial trade or services;
- The petitioning organization has been engaged in commercial activities out of their U.S. office for at least 1 year;
- The petitioning organization has three or more connected international entities e.g. foreign branches, subsidiaries, and affiliates; and
- The petitioning employer and its connected international entities can demonstrate one of the following –
- Have received 10 or more approved L-1 visa petitions during the previous year;
- Its U.S. subsidiaries or affiliates have a total revenue of at least $25 million; OR
- Employ more 1,000 or more workers.
The L visa blanket petitions is a useful avenue for larger companies to transfer key personnel with flexibility, efficiently and without the type of advance planning needed when filing an individual L-1 petition.
For more information about blanket L petitions see 8 CFR 214.2(l)(4) and 8 CFR 214.2(l)(5)
The spouse and unmarried children who are under 21 years old are eligible to accompany all L-1 visa holders to the U.S. and for the same period of admission as their spouse/parent.
The husbands/wives of L-1 visa holders are eligible to obtain employment authorization. The Employment Authorization Document is obtained by way of filing Form I-765 and this authorization carries no limitations as to the location or nature of the spouse’s employment.
The L-1 visa option, if navigated correctly, can play a valuable role in an organization’s ability to transfer key managers and executives of qualifying enterprises and integrate the petitioned manager or executive’s knowledge and expertise into the U.S. company’s toolbox. Successful execution in the preparation and filing an L visa petition, like most immigration related filings, will generally depend on careful planning and the gathering and submission of all required documentation and essential details related to the transferred employee’s role overseas and in the U.S.