• L1A Visas for Intracompany Transferee Executives or Managers
  • October 19, 2015 | Author: Alexander Joseph Segal
  • Law Firm: The Law Offices of Grinberg & Segal, PLLC - New York Office
  • Introduction

    The L1A visa is for intracompany transferee managers and executives. It allows a U.S. company to transfer a foreign executive or manager from a company with a qualifying relationship to the U.S. company to work in the United States as an executive or manager. A U.S. company may also transfer a foreign executive or manager to open a “new office” in the United States. The spouse and unmarried children under 21 years of age of an L1A beneficiary may seek admission with a derivative L2 visa.

    Requirements for Being an L1A Visa Petitioner

    The L1A visa petitioner must be a U.S. company with a qualifying relationship to the foreign company it seeks to transfer a executive or manager from. The qualifying relationship must be as a parent, branch, affiliate, or subsidiary.1 The petitioner must be, or will be, doing business in the United States and at least in one other country directly or indirectly with an entity with which the petitioner has a qualifying relationship.2

    Certain petitioners are eligible to file L1 visa blanket petitions (these include L1A and L1B specialized knowledge visas). A blanket petition allows the petitioner to petition to import many L visa executives or managers or specialized knowledge workers at once rather than filing individual petitions for each worker.3 In order to qualify to file a blanket petition, the petitioner must:
    • Along with each petitioning organization, be engaged in commercial trade or services (note that this precludes nonprofits from being able to file blanket petitions);
    • Has an office in the United States that has been doing business in the United States for at least one year (note that this precludes new offices from being able to file blanket petitions);
    • Has three or more domestic and foreign branches, subsidiaries, or affiliates; and
    • Has obtained approval for at least ten L beneficiaries in the previous 12 months; or have U.S. subsidiaries or affiliates with combined annual sales of at least $25 million; or have a U.S. work force of at least 1,000 employees.4

    Eligibility Requirements for L1A Visa

    In order to be eligible for an L1A visa, the foreign worker must have worked continuously for one year for the foreign entity with a qualifying relationship to the petitioner within the three years immediately preceding the filing of the L1A petition. The foreign worker must have worked in a managerial or executive capacity for that one year. The petition must also demonstrate that the foreign worker will work in a managerial or executive capacity in the United States.

    An employee working in a managerial capacity manages the organization, or a department, subdivision, function, or component of the organization. A manager may work in a supervisory role, but that is not required. If the manager is working in a supervisory role, he or she must have the power to hire, fire, or recommend those and other personnel actions. If the manager is not a supervisor, he or she must function at a senior level within the organizational hierarchy with respect to what he or she is managing. All managers must exercise discretion over the day-to-day operations of the activity or function over which he or she has authority. If the manager is a front line supervisor, he or she must be supervising professionals.5

    An employee working in an executive capacity must direct the management of the organization, or a major component or function of the organization. A person working in an executive capacity must establish the goals for that which he is directing and have the freedom to exercise wide latitude in discretionary decision making. He or she must only receive supervision or direction from higher level executives, the board of directors, or stockholders of the organization.6

    While the L1 visa category is not intended to facilitate self-employment or the relocation of the petitioning organization, the beneficiary of an L1A petition may be the owner or significant shareholder within the petitioning organization.7 However, the petition would be required to show that all of the requirements for an approvable L1A petition are met, foremost the petitioning organization’s ongoing international nature.8

    Opening a New Office with an L1A Beneficiary

    The petitioner may petition for an L1A worker to work in a “new office” in the United States. In order to meet the requirements, the petitioner must demonstrate that sufficient physical premises exist for the new office and that the new office will support an executive or managerial position within one year of the approval of the petition.9

    Filing Process

    Except in the case of a blanket petition, the petitioner must file a Form I-129, Petition for Nonimmigrant Worker. If the petitioner has not previously filed an L1 petition, it must also submit a $500 fraud prevention and detection fee. The Form I-129 must contain evidence that all the requirements for L1A status are met, and the petitioner must comply with all reasonable documentary requests from USCIS.
    If the petitioner is filing after a blanket petition, it must file a Form I-129-S, Nonimmigrant Petition Based on Blanket L Petition and attach a Form I-171C demonstrating blanket approval.10

    Being on L1A and L2 Status

    An L1A visa may be approved for an initial period of up to three years.11 However, a consular officer, in his or her discretion, may limit the initial validity period of the L1A visa.12 In the case that the L1A visa is for opening a new office, it may only be approved for an initial period of one year, after which USCIS will determine if the petition is eligible for reapproval.13 An L1A petition may be reapproved for two-year increments, but not in excess of seven years total.14 However, time spent outside of the United States while on L1A status may be recaptured and added to the 7 year maximum period of stay.15

    If the beneficiary’s duties change significantly while on L1A status, or if he or she is transferred from one company to another within the same organization but where the beneficiary will have a different employer, the petitioner will be required to file an amended Form I-129.16 An L1A beneficiary may work for multiple subsidiaries of the same company, but subsidiaries may be required to file a Form I-129 to establish a qualifying relationship for L1 purposes.

    An L1A beneficiary is not required to engage in full-time employment, but he or she must devote a significant portion of time on a regular and systemic basis to performing executive or managerial work for the petitioner in order to stay in L1A status.17

    L2 beneficiaries may stay in valid status for the same duration as the L1A beneficiary’s period of authorized stay.18 L2 beneficiaries may attend school in the United States and work after obtaining employment authorization.19

    Both L1A and L2 beneficiaries are eligible to apply for adjustment of status. An L1A or L2 may travel without a grant of advance parole with a pending adjustment of status petition and not jeopardize the adjustment of status petition so long as he or she demonstrates that the L1A’s employment will continue with a valid L1A visa.20 An L1A beneficiary may apply for adjustment of status through the EB-1 category and be approvable without obtaining labor certification.

    1. 8 C.F.R. § 214.2(l)(G)
    2. Id.
    3. INA § 214(c)(2)(A)
    4. For the list: 8 C.F.R. § 214.2(l)(4)(i)(A)-(D)
    5. For the section: INA § 104(a)(44)(A)(i)-(iv)
    6. For the section: INA § 101(a)(44)(B)(i)-(iv)
    7. 9 FAM 41.42 N6.6
    8. 9 FAM 41.54 N9.4
    9. For the section: 8 C.F.R. § 214.2(l)(3)(v)
    10. 8 C.F.R. § 214.2(l)(5)(ii)
    11. 8 C.F.R. § 214.2(l)(7)(i)(A)(2)
    12. 9 FAM 41.54 N20.2
    13. 9 FAM 41.54 N11.1
    14. INA § 214(c)(2)(D)(ii)
    15. Matter of IT Ascent, EAC 04-047-53189 (AAO Sept. 2, 2005); Memo, Aytes, Acting Assoc. Dir. Operations, HQPRD 70/6.2.8, 70/6.2.12, AD 05-21 (Oct. 21, 2005); AFM 32.6(g)
    16. 8 C.F.R. § 214.2(l)(7)(i)(C)
    17. O.I. § 214.2(l)(5)(ii)(B)
    18. 8 C.F.R. § 214.2(l)(7)(ii)
    19. INA § 214(c)(2)(E)
    20. Memo, Aytes, Assoc. Dir., Domestic Operations, USCIS, HQPRD, 70/6.2.8, 70/6.2.12, AD 06-29 (Dec. 5, 2006)