L-1A visa options for intra-company transferees
The L-1A visa - also known as the intra-company transferee - applies to executive managers or high ranked managers within a foreign organization outside the U.S. These executive managers can be reassigned from their foreign company or employer to work in the U.S for a period not to exceed seven years in a branch office of the foreign company in the U.S.
The L-1A visa is usually issued to the executive manager upon proving employment with the foreign company for a minimum of one continuous year of the preceding three years. Moreover, the two entities must have a legal relationship such as parent, affiliate, subsidiary or branch. The transferee must have at least one year of employment as an executive manager with direct management skills (supervising the work of other professionals) or having the hiring and firing authority over other employees. This classification doesn’t apply to first line or low level managers.
The spouse of the transferee along with any unmarried children/minors are entitled to admission into the U.S. with an L-2 visa status. A spouse is entitled to an employment authorization during the entire period of his/her L-2 status. While the L-1A is a useful tool to transfer and relocate foreign managers to related U.S. companies, a few other visa classifications to consider are the E-2 (for eligible countries), EB-5 and H-1B.
Doing Business and Qualifying Relationships
Throughout the entire duration of the foreign executive manager’s stay in the U.S., the organization must be “Doing Business” through entities within both the U.S. and one foreign country that qualify under what is referred to as “qualifying relationship” such as affiliate or branch. The definition of “Doing Business” means the continuous, systematic and regular provision of goods and or services which does not include the mere presence of an office or an agent of the foreign company in the U.S. The transferee must have worked during the three years preceding filing the L-1A petition in an executive or managerial capacity. For an example, working as an independent freelancer or contractor is not enough to satisfy this requirement.
It should be noted that having the “executive manager” title or working in some managerial positions may not be deemed as executive under the statute. For example, there have to be enough staff (typically three people) which the executive manager oversees to perform the daily operations of the foreign company. The foreign company must prove that it will conduct its U.S. office at a level that would require the same duties and responsibility as an executive manager.
Qualifying for a Green Card
The L-1A has no annual limitations on the number of petitions that can be granted as opposed to other petitions such as the H-1B. There are no specific wage requirements for L1A employees, also known as the prevailing wage. Moreover, the employment of the L-1A should be temporary. Although an L-1A applicant may qualify for a Green Card petition after one year from obtaining the L-1A petition, the U.S. Department of Immigration requires that the L-1A petitioner prove that this executive manager will depart the country after completing his/her temporary employment in the U.S. Also, the wages for the U.S. employment can be paid by the U.S. entity or by the foreign company. The executive manager coming to open a new office may be admitted to the U.S. for an initial period not to exceed one year which can later on be extended up to seven years, which allows the immigration to screen the start-up business. Immigration has placed certain requirements to meet the statutory elements of opening a “new office.” The new office must demonstrate that the U.S. entity and its operation will satisfy within a year the “Doing Business” requirement. For new offices the following must be met to satisfy the statutory requirements:
- Leasing or buying physical premises to house the new operation. It should be noted that virtual offices are not recommended and more likely will adversely affect the L-1A petition.
- Securing enough financial support to sustain the new office. This can be satisfied by a letter from the board of directors pledging to dedicate certain capital to house the new office.
- A business plan is important to show the organizational structure of the foreign and U.S. office. It should be noted that the business plan must be credible and based on tangible facts and sound business principles, not just mere speculation.
- Make sure that the office you plan to open in the U.S. doesn’t require certain licenses or governmental approvals, such as those for liquor stores, etc.
- Obtaining a federal employment number to facility opening bank accounts, hiring employees, etc.