Intracompany Transferees (L-1A and L-1B classifications)
GENERAL EXPLANATIONS
An intracompany transferee means an alien who, within three years preceding the time of his or her application for admission into the United States, has been employed abroad continuously for one year by a firm or corporation or other legal entity or parent, branch, affiliate, or subsidiary thereof, and who seeks to enter the United States temporarily in order to render his or her services to a branch of the same employer or a parent, affiliate, or subsidiary thereof in a capacity that is managerial, executive, or involves specialized knowledge.
An alien transferred to the United States under this nonimmigrant classification is referred to as an “intracompany transferee” and the organization in the USA which seeks the classification of an alien as an intracompany transferee is referred to as the “qualifying organization” as well as the “petitioner”.
DETAILS
1. L-1A classification can be secured by an alien who:
Has been employed by a foreign employer (outside the USA) in a MANAGERIAL or EXECUTIVE position for one year or more within the preceding three years and is coming to the USA to be employed in a MANAGERIAL or EXECUTIVE capacity by a parent, branch, affiliate, or subsidiary of that foreign employer in the USA.
MANAGERIAL CAPACITY means an assignment within an organization in which the employee primarily:
– 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.
EXECUTIVE CAPACITY means an assignment within an organization in which the employee primarily:
– 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.
2. L-1B classification can be secured by an alien who:
Has been employed by a foreign employer (outside the USA) in a position requiring “specialized knowledge” for one year or more within the preceding three years and is coming to the USA to be employed in a position requiring such “specialized knowledge” by a parent, branch, affiliate, or subsidiary of that foreign employer in the USA.
SPECIALIZED KNOWLEDGE means special and advanced 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.
DETAILS OF THE INDIVIDUAL L-1 PETITION
A petitioner seeking to classify an alien as an intracompany transferee must file a petition on Form I-129, Petition for Nonimmigrant Worker, only at the Service Center which has jurisdiction over the area where the alien will be employed.
An individual petition filed on Form I - 129 should be accompanied by:
– Evidence that the petitioner and the organization which employed or will employ the alien are qualifying organizations as defined in the regulations.
– Evidence that the alien will be employed in an executive, managerial, or specialized knowledge capacity, including a detailed description of the services to be performed.
– Evidence that the alien has at least one continuous year of full-time employment abroad with a qualifying organization within the three years preceding the filing of the petition.
– Evidence that the alien’s prior year of employment abroad was in a position that was managerial, executive, or involved specialized knowledge and that the alien’s prior education, training, and employment qualifies him/her to perform the intended services in the United States; however, the work in the United States need not be the same work which the alien performed abroad.
If the petition indicates that the beneficiary is coming to the United States as a manager or executive to open or to be employed in a new office in the United States, the petitioner shall submit evidence that:
– Sufficient physical premises to house the new office have been secured;
– The beneficiary has been employed for one continuous year in the three year period preceding the filing of the petition in an executive or managerial capacity and that the proposed employment involved executive or managerial authority over the new operation; and
– The intended United States operation, within one year of the approval of the petition, will support an executive or managerial position, supported by information regarding:
– The proposed nature of the office describing the scope of the entity, its organizational structure, and its financial goals;
– The size of the United States investment and the financial ability of the foreign entity to remunerate the beneficiary and to commence doing business in the United States; and
– The organizational structure of the foreign entity.
If the petition indicates that the beneficiary is coming to the United States in a specialized knowledge capacity to open or to be employed in a new office, the petitioner shall submit evidence that:
– Sufficient physical premises to house the new office have been secured;
– The business entity in the United States is or will be a qualifying organization as defined in paragraph (l)(1)(ii)(G) of this section; and
– The petitioner has the financial ability to remunerate the beneficiary and to commence doing business in the United States.
If the beneficiary is an owner or major stockholder of the company, the petition must be accompanied by evidence that the beneficiary’s services are to be used for a temporary period and evidence that the beneficiary will be transferred to an assignment abroad upon the completion of the temporary services in the United States.
An individual petition approved under this paragraph shall be valid for the period of established need for the beneficiary’s services, not to exceed three years, except where the beneficiary is coming to the United States to open or to be employed in a new office.
If the beneficiary is coming to the United States to open or be employed in a new office, the petition may be approved for a period not to exceed one year, after which the petitioner shall demonstrate that it is doing business to extend the validity of the petition.
DEFINITIONS
New office
Means an organization which has been doing business in the United States through a parent, branch, affiliate, or subsidiary for less than one year.
Qualifying organization
Means a United States or foreign firm, corporation, or other legal entity which:
– Meets exactly one of the qualifying relationships specified in the definitions of a parent, branch, affiliate or subsidiary;
– Is or will be doing business (engaging in international trade is not required) as an employer in the United States and in at least one other country directly or through a parent, branch, affiliate, or subsidiary for the duration of the alien’s stay in the United States as an intracompany transferee; and
Doing business
Means the regular, systematic, and continuous provision of goods and/or services by a qualifying organization and does not include the mere presence of an agent or office of the qualifying organization in the United States and abroad.
Parent
Means a firm, corporation, or other legal entity which has subsidiaries.
Branch
Means an operating division or office of the same organization housed in a different location.
Subsidiary
Means a firm, corporation, or other legal entity of which a parent owns, directly or indirectly, more than half of the entity and controls the entity; or owns, directly or indirectly, half of the entity and controls the entity; or owns, directly or indirectly, 50 percent of a 50-50 joint venture and has equal control and veto power over the entity; or owns, directly or indirectly, less than half of the entity, but in fact controls the entity.
Affiliate
Means
– One of two subsidiaries both of which are owned and controlled by the same parent or individual, or
– One of two legal entities owned and controlled by the same group of individuals, each individual owning and controlling approximately the same share or proportion of each entity, or
– In the case of a partnership that is organized in the United States to provide accounting services along with managerial and/or consulting services and that markets its accounting services under an internationally recognized name under an agreement with a worldwide coordinating organization that is owned and controlled by the member accounting firms, a partnership (or similar organization) that is organized outside the United States to provide accounting services shall be considered to be an affiliate of the United States partnership if it markets its accounting services under the same internationally recognized name under the agreement with the worldwide coordinating organization of which the United States partnership is also a member.
APPROVAL OF L-1 PETITION
When the L-1 petition is approved, USCIS will issue and forward to the L-1 petitioner a Form I-797 notice of L-1 petition approval.
LIMITATIONS OF STAY
L-1A visa holders are limited to 7 years and L-1B visa holders are limited to 5 years.
An alien who has spent five years in the United States in a specialized knowledge capacity or seven years in the United States in a managerial or executive capacity may not be readmitted to the United States IN L-1 status unless the alien has resided and been physically present outside the United States, except for brief visits for business or pleasure, for the immediate prior year. In view of this restriction, a new individual petition may not be approved for an alien who has spent the maximum time period in the United States unless the alien has resided and been physically present outside the United States for the immediate prior year. The petitioner shall provide information about the alien’s employment, place of residence, and the dates and purpose of any trips to the United States for the previous year.
VISA ISSUANCE
A beneficiary of an individual petition. The beneficiary of an individual petition who does not require a nonimmigrant visa (Canadian citizens) may present a copy of Form I-797 at a port of entry to facilitate entry into the United States. The copy of Form I - 797 shall be retained by the beneficiary and presented during the validity of the petition (provided that the beneficiary is entering or reentering the United States) for entry and reentry to resume the same employment with the same petitioner (within the validity period of the petition) and to apply for an extension of stay.
A beneficiary who is required to present a visa for should use the original Form I-797 to apply for a visa at the U.S. Consulate in the alien’s home country during the validity period of the petition.
EXTENSION OF L-1 PETITION
The petitioner must file a petition extension on Form I-129 to extend an individual petition. Except in those petitions involving new offices, supporting documentation is not required, unless requested by USCIS. A petition extension may be filed only if the validity of the original petition has not expired.
New offices. A visa petition which involved the opening of a new office may be extended by filing a new Form I - 129, accompanied by the following:
– Evidence that the United States and foreign entities are still qualifying organizations;
– Evidence that the United States entity has been doing business for the previous year;
– A statement of the duties performed by the beneficiary for the previous year and the duties the beneficiary will perform under the extended petition;
– A statement describing the staffing of the new operation, including the number of employees and types of positions held accompanied by evidence of wages paid to employees when the beneficiary will be employed in a managerial or executive capacity; and
– Evidence of the financial status of the United States operation.
EXTENSION OF THE ALIEN’S STAY (FORM I-94).
The petitioner must apply for the petition extension and the alien’s extension of stay concurrently on Form I-129. The dates of extension shall be the same for the petition and the beneficiary’s extension of stay. The beneficiary must be physically present in the United States at the time the extension of stay is filed. Even though the requests to extend the visa petition and the alien’s stay are combined on the petition, the director shall make a separate determination on each. If the alien is required to leave the United States for business or personal reasons while the extension requests are pending, the petitioner may request the director to cable notification of approval of the petition extension to the consular office abroad where the alien will apply for a visa.
An extension of the petition and the alien’s stay may be authorized in increments of up to two years for beneficiaries of individual petitions. The total period of stay may not exceed five years for aliens employed in a specialized knowledge capacity. The total period of stay for an alien employed in a managerial or executive capacity may not exceed seven years. No further extensions may be granted. When an alien was initially admitted to the United States in a specialized knowledge capacity and is later promoted to a managerial or executive position, he or she must have been employed in the managerial or executive position for at least six months to be eligible for the total period of stay of seven years. The change to managerial or executive capacity must have been approved by the Service in an amended, new, or extended petition at the time that the change occurred.