Intra-Company Transferee L – 1

Hart Immigration will process your company’s L-1 petitions or blanket petition and will interface with your executives, managers or employees with specialized knowledge to ensure the fastest and smoothest entries into the U.S.

The L-1 visa enables the transfer of managers, executives and specialized knowledge personnel to a U.S. parent office, branch, subsidiary or affiliated company. This visa is sometimes referred to as the “intra-company transferee” visa.

To obtain an L-1 visa, the employee must be able to prove that s/he has worked for the company abroad for at least one full year within the last three years as an executive, manager or employee with specialized knowledge.

If your company has filed a blanket L, you need only have worked for the foreign company for 6 months prior to filing for an L-1 visa.

This visa comes in the following categories:

• L-1A visas – for executives and managers
• L-1B visas – for personnel with specialized knowledge

Upon temporary entry into the U.S., the transferred employee will continue to work for the same employer, its subsidiary or affiliate. Full-time employment is not required but the employee must contribute most of his/her time on a regular basis and work as a manager, executive or apply his/her specialized knowledge.

An L may be transferred from one U.S. subsidiary to another but a new I-129 petition must be filed.

The employee may also apply for a lawful permanent resident visa while in L-1 status.

L-2 Visas (Spouse and Children of L-1s)

Your spouse and unmarried children under the age of 21 are allowed to join you in the United States under L-2 status. The spouse is allowed to work. The spouse and children can attend school or college.

Employer

The employer firm, corporation or other legal entity may be a for-profit, non-profit, religious or charitable organization.

Both U.S. and foreign companies must be active.

The foreign and U.S. subsidiary companies do not have to be in same business.

There is no size limitation of the companies.

Unlike E’s, there is no country limitation – in other words, no treaty countries.

The parameters of the foreign organization and its affiliate or subsidiary in the United States are depicted in terms of their relationship.

The following relationships will qualify the subsidiary organization to petition an L-1 employee:

• An organization which has a majority stock ownership in both companies;

• Where the foreign entity has less than a majority ownership but has control over the U.S. entity;

• Ownership by a common group such as the same individuals represented by various legal entities. For example, where the affiliate in the U.S. is owned 1/3 by a family corporation, 1/3 by a person who owns the foreign corporation and 1/3 by the family of the person. To qualify as the affiliate, each individual in the group must own approximately the same share of each entity. Identical ownership in this scenario is not required;

• Church organizations may qualify as parent/subsidiary or affiliates under certain circumstances if they bear a common name, they regularly share and exchange personnel, technical, research and financial skills and carry a cross directorship;

• Partnerships with an internationally recognized name and an agreement with a global coordinating organization owned and controlled by the member firms that market accounting or marketing services.The following relationship will NOT qualify the organization to petition an L-1 employee;

• Contractual relationship such as in a licensing or franchising agreement except if the agreement controls the policies and advertising;

• Contractual joint venture.

Employee

Although special requirements apply, an employee may also be a sole stockholder, a majority or substantial stockholder of the U.S. corporation and/or its foreign counterpart, or a sole proprietor.

Managerial Capacity, defined

The term “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;

• If another employee or other employees are directly supervised, has the authority to hire and fire or recommend those as well as other personnel actions (such as promotion and leave authorization) or, 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, defined

The term “œexecutive capacity” means an assignment within an organization in which the employee primarilyDirects 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.

If staffing levels are used as a factor in determining whether an individual is acting in a managerial or executive capacity, the Attorney General shall take into account the reasonable needs of the organization, component, or function in light of the overall purpose and stage of development of the organization, component, or function. An individual shall not be considered to be acting in a managerial or executive capacity (as previously defined) merely on the basis of the number of employees that the individual supervises or has supervised or directs or has directed.

Specialized Knowledge defined

Specialized knowledge means 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.

To serve in a specialized knowledge capacity, the alien’s knowledge must differ from or surpass the ordinary or usual knowledge of an employee in the particular field, and must have been gained through significant prior experience with the petitioning organization. A specialized knowledge employee must have an advanced level of expertise in his or her organization’s processes and procedures or special knowledge of the organization which is not readily available in the United States labor market.

Some characteristics of an employee who has specialized knowledge are that he or she:

• Possesses knowledge that is valuable to the employer’s competitiveness in
  the market place;

• Is uniquely qualified to contribute to the U.S. employer’s knowledge of
  foreign operating conditions;

• Has been utilized as a key employee abroad and has been given significant
  assignments which have enhanced the employer’s productivity, competitiveness,
  image, or financial position; and

• Possesses knowledge which can be gained only through extensive prior
  experience with the employer.

Agency Employment

If hired by an agency, an out-sourced employee although working and directed by the affiliate will not be considered an employee of the affiliate for L-1 purposes.

Salary

L-1 employment does not necessarily depend upon an amount of pay or existence of a salary. The key element is the power of control by the foreign company’s office in the U.S. over its employee’s activity rather than salary. For example, a non-salaried chairman can qualify as an L-1. Further, unlike the H-1B, there is no prevailing wage requirement. The greatest concern is whether the prospective employee would become a public charge.

Blanket Procedure

The requirements for a petitioner to be granted blanket approval are as follows:

• The U.S. company has an office and has been doing business in the U.S. for one year;

• The company has at least 3 domestic and foreign branches, subsidiaries or affiliates. The Petitioner and its entities are engaged in commercial trade or services;

• Combined U.S. annual sales of $25 million, a U.S. workforce of 1,000 employees or the petitioner has received approval of at least 10 L petitions in the last 12 months;

• Nonprofit organizations are not eligible to file blanket petitions;

• An employee of a company approved for L-1 need only have worked for the company abroad for 6 months instead of one year.