From the petitioning U.S. employer side of the equation, the L-1B visa petition must include proof of:
- The U.S. company’s qualifying ownership connection to the worker’s foreign employer, whether it be the U.S. entity’s parent corporation, subsidiary, branch or affiliate and
- The U.S. company’s ongoing or prospective business operations, and the qualifying overseas company’s ongoing business operations.
In terms of documenting business operations in the U.S., the petition must establish the petitioning U.S. entity’s current or prospective “regular, systematic, and continuous provision of goods and/or services” as opposed to just a shell or symbolic presence of an organization in the U.S. or overseas
From the petitioned employee side, the L-1A visa petition must document:
- That the foreign worker had been employed with the related overseas company for at least 1 year continuously within the 3 year window leading up to the date being contemplated for their L-1B admission and
- That the foreign worker will be assigned to a position in the U.S. where they will put to use their “specialized knowledge” of the company’s goods or services.
Specialized knowledge per immigration regulations is defined as special knowledge the foreign worker has gained regarding the company’s product, service, research, equipment, techniques, management, or other interests and how it is put to use in global commerce, or an advanced insight into the company’s processes and procedures. For more information see 8 CFR 214.2(l)(1)(ii)(D)). https://www.law.cornell.edu/cfr/text/8/214.2
The L-1 Visa Reform Act of 2004 governs all filings submitted on or after June 6, 2005, and situations where the petitioned L-1B visa worker will be assigned to a work location outside the U.S. organization’s premises. For L-1B workers being assigned at a 3rd party location, the petitioning U.S. organization must document:
- The petitioned worker will not be reporting to or under the supervision of a party other than the petitioning U.S. organization, and
- The work being carried out by the L-1B worker does not constitute “labor for hire” for or on behalf of the third party receiving the fruits of the worker’s efforts.
For more details see INA 214(c)(2)(F) and US CIS AFM Chapter 32.3(c). https://www.uscis.gov/ilink/docView/AFM/HTML/AFM/0-0-0-1/0-0-0-15111.html
The set up of a new U.S. operation where the entry and employment of an overseas “specialized knowledge” worker is sought, involves a variety of immigration related requirements, including:
- That the U.S. operation has obtained an adequate physical location from which to conduct business, and
- That the U.S. operation has the financial means to cover the petitioned worker’s salary as well as to commence conducting business in the U.S.
For more details on these requirements, see 8 CFR 214.2(l)(3)(vi) https://www.law.cornell.edu/cfr/text/8/214.2
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 “specialized knowledge” workers are allotted an initial period of admission of up to 3 years. The stay of L-1B workers can be extended by company petition but only toward a maximum of 5 years, unless the company takes measures to allow the worker to stay permanently on a green card via an I-140 Immigrant Worker Petition.
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-1B visa process, when managed effectively, can play a key role in a global company’s efforts at efficiently transferring talented personnel with sophisticated and proprietary knowledge and to integrate those skills into the U.S. company’s operations. As is the case with pretty much all immigration related filings, a petitioning company must act with foresight, adhering to all requirements set forth in the instructions and regulations and supporting their filing with details and documentation.