When a company has many branches, affiliates, subsidiaries, etc. and operates in more than one country, it can be challenging to determine where that company’s top talent may serve in the most positive possible ways. For example, if an executive has done an excellent job helping to restructure a struggling branch, is the company better served by keeping that executive where they are or would another branch be similarly revitalized by this individual’s transfer? When foreign-based companies ultimately make the decision to transfer executives, managers or employees with specialized knowledge to one of their associated organizations in the United States, they generally must file L1-A or L1-B visas on behalf of those individuals before travel permissions can be properly obtained.
These visas are highly specialized and require both petitioning companies and their intracompany transfer candidates to meet nuanced eligibility criteria. Before committing to applying for this particular visa type, it is important to consult with an experienced immigration attorney. Depending on your company’s unique circumstances and your employee’s unique qualifications, you may be better served by applying for an alternative visa arrangement. An attorney will be able to advise you of your options once he or she learns more about both the company and candidate in question.
Corporate Eligibility Requirements
Only companies that meet certain criteria are eligible to petition for L1-A and L1-B visa transfers. Petitioning employers must function as a corporation, nonprofit organization, religious organization or other qualifying entity. The petitioning foreign company must have a qualifying relationship with a parent company, affiliate, branch or subsidiary based in the United States. It may be possible to transfer a candidate to a newly opening office in the U.S., but additional restrictions may apply in such situations as L visa transfers usually only apply when the U.S. organization has been in active operation for a minimum of one year. In addition, for the duration of a visa holder’s stay, the company must be actively “doing business” as an employer in both the U.S. and a minimum of one additional foreign country. The legal definition of “doing business” requires an employer to be actively and continually engaging in commercial trade.
Individual Employee Eligibility Requirements
Generally speaking, an intracompany transfer visa candidate must have been employed by the petitioning employer for at least one continuous year during the three years immediately prior to that visa candidate’s entrance to the United States. In addition, each candidate must have specific qualifications and/or position-related responsibilities in order to qualify for an L visa transfer.
L-1A visa candidates must operate in an executive or managerial capacity. Specifically, executive candidates must be granted the authority to make consequential and relatively far-reaching decisions without a great deal of oversight. U.S. Citizenship and Immigration Services requires managerial candidates to have authority to “supervise and control the work of professional employees and to manage the organization, or a department, subdivision, function, or component of the organization” and/or “manage an essential function of the organization at a high level, without direct supervision of others.” A company must maintain several “tiers” of employees in order for executives and managers to meet minimum L visa standards.
L-1B candidates are not generally required to assume specific positions of authority. Instead, these employees must possess “either special knowledge possessed by an individual 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.”
When foreign nationals wish to enter the U.S. for a limited period of time for the purposes of traveling for pleasure or engaging in very limited kinds of business-related activities, they usually must secure a so-called “visitor visa.” In order to qualify for a B1, B2 or B1B2 visitor visa, an individual must prove that he or she has nonimmigrant intent. Practically speaking, this means that an applicant must prove that he or she has strong ties to a foreign country of residence, does not intend to sever those ties and intends to leave the U.S. in order to resume residence in a foreign country before the terms of his or her visa expire. Individual L1-A and L1-B candidates are held to a similar standard of nonimmigrant intent. If your intracompany transfer candidate intends to remain in the U.S. longer than the term admissible according to the relevant visa, you should explore alternative visa options with your attorney.
It is worth noting that L-1B visa holders may generally only remain in the U.S. for a stay up to five years, whereas L-1A visa holders may remain in the U.S. for up to seven years. However, certain limitations and exceptions apply to these duration-related mandates. For example, if a transfer candidate has previously worked in the United States as the holder of an H visa, his or her L visa stay may be shortened if the government deducts time allowed by the previous duration of the candidate’s H visa stay. If you are concerned about an employee’s potential duration-of-stay restrictions, please speak with your attorney in order to receive clarification and to explore possible alternative arrangements and extensions.
Visa Assistance Is Available
If your company is interested in transferring an executive, manager or employee with specialized knowledge from one of your foreign branches to a qualifying organization in the U.S., please understand that this process is complex and should be treated with care and attention to detail. Your first step is to contact an attorney experienced in complex immigration transfers like these. Once you confirm that both your company and your transfer candidate meet all eligibility criteria, you and your attorney will be able to begin the work of securing an L1-A or L1-B visa on behalf of that employee.
Once you have committed to making a potentially eligible transfer, please consider scheduling a consultation with a LawTrades immigration attorney. Our efficient, cost-effective and highly experienced approach will help to ensure that your visa petition process progresses as smoothly and as quickly as possible. We look forward to speaking with you.