The L-1 visa is a nonimmigrant visa that is used by multinational companies to transfer high-level managers, executives, and specialized knowledge employees, from overseas to work in a similar capacity in the United States. The L-1 visa allows for dual intention, meaning that a foreign national may seek lawful permanent residence while pursuing or residing in the U.S. in L-1 status.
There are two types of L-1 visas: L-1As for multinational managers and executives, and L-1B for employees with specialized knowledge. In both cases, the non-U.S. company must be related to the petitioning U.S. entity (i.e., a subsidiary, affiliate, etc.) and must provide USCIS with documentary proof of this relationship.
In addition to the visa specific qualifications, for both the L-1A and L-1B the foreign national must have been continuously employed by the non-U.S. entity for at least one year out of the last three years prior to the entry into the United States.
L-1A Visas and Challenges
L-1A visas are issued to qualifying foreign nationals who are coming to the United States to serve in a managerial or executive function for the U.S.-based entity of their foreign employer.
Generally, qualified L-1A employees mayl be granted a maximum initial stay of three years. Requests for extension of stay may be granted in increments of up to an additional two years until the L-1A employee has reached the maximum limit of seven years.
What is a manager?
For the L-1A visa, federal regulations define a “manager” as:
- Someone who primarily manages the organization, or a department, subdivision, function, or component of the organization. The addition of the concept function gives the definition more usefulness for small companies or companies in which a key function is primarily managed and run by the same person, or
- Someone who primarily 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, or
- Someone who has the authority to hire and fire and recommend those as well as other personnel actions if another employee or other employees are supervised; if no other employees are supervised, functions at a senior level within the organizational hierarchy or with respect to the function managed; or
- Someone who exercises discretion over the day-to-day operations of the activity or function for which the employee has authority.
What is an executive?
For the L-1A visa, federal regulations define an “executive” as:
- Someone who directs the management of the organization or a major component or function.
- Someone who establishes the goals and policies of the organization, component, or function.
- Someone who exercises wide latitude in discretionary decision-making, and
- Someone who receives only general supervision or direction from higher-level executives, the board of directors, or stockholders of the organization.
Establishing a new office
Non-U.S. based employers may send an employee to the United States as an executive or manager to establish a new branch if the employer shows that
- The employer has secured sufficient physical premises to house the new offices.
- The employee has been employed as an executive manager for one continuous year in the three years preceding the filing of the petition.
- The intended U.S. office will support an executive or managerial position within one year of the approval of the petition.
Qualified L-1A employees entering the U.S. to establish a new office will be allowed a maximum initial stay of one year.
L-1B Visas and Challenges
The L-1B visa category enables a U.S.-based employer to transfer a professional employee with specialized knowledge relating to the organization’s interests from one of its affiliated foreign offices to one of its officers in the United States. This classified also allows a foreign company that does not yet have an affiliated U.S. office to send a specialized knowledge employee to the United States to help establish one.
Qualifying L-1B employees will be allowed a maximum initial stay of three years. Requests for extension of stay may be granted in increments of up to an additional two years, until the employee has reached the maximum limit of five years.
How is specialized knowledge defined?
For the L-1B visa, federal regulations define a specialized knowledge employee as:
“A qualified person of specialized knowledge must have special or unique 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 or procedures. Special knowledge is knowledge that is different from or exceeds the ordinary or usual knowledge of an employee in a particular field.
Establishing a new office
- Non U.S.-based employers seeking to transfer a specialized knowledge employee to the United States to be employed in a qualifying new office, the employer must show that:
- The employer has secured sufficient physical premises to house the new office; and
- The employer has the financial ability to compensate the employee and begin doing business in the United States.
Commercial tools and methodologies
The L-1B petition should emphasize the foreign national’s unique and/or advanced knowledge in the tools and methodologies that the prospective L-1B employee has mastered. If the employee’s knowledge rests solely within commercially available tools, then they are likely ineligible for L-1B classification.
Explaining proprietary tools
A successful L-1B petition may focus on the employer’s proprietary company tools (e.g., a software methodology that the company itself has developed). The prospective L-1B employee must have attained advanced and/or unique knowledge of these tools, usually requiring at a minimum of one year’s worth of experience outside of the U.S. Once the candidate has acquired specialized knowledge and subsequently applied it to their project work for one continuous year prior to filing, they have met the basic requirements for the L-1B visa.
Proposed US Duties
Before filing an L-1B petition, the sponsoring foreign company and U.S. entity must determine whether the job duties for the prospective U.S. position can be accomplished without the application of the employee’s specialized knowledge. If this is the case, even though the employee may possess specialized knowledge, the L-1B petition is not likely to be approved.