TRANSFER OF EMPLOYEES TO THE UNITED STATES
L-1 Intra-company Transferee
The smooth transfer of your company’s key employees to the United States is always of great concern. Most executives, managers and employees with specialized knowledge can come to work in the United States using the L-1 intra-company transferee visa. An introduction to that visa, which includes changes made by the Immigration Act of 1990, is presented here. Be sure to consult with an attorney experienced in immigration matters to see if this visa is appropriate for your situation.
Which Companies Qualify to Transfer Employees to the United States?
Only those companies which exactly meet the Immigration Service’s definition of a parent, branch, subsidiary or affiliate qualify to petition for an L-1 intracompany transferee visa. These definitions are very precise and require an analysis of both the foreign and the U.S. ownership of the companies. Both the foreign and U.S. operations must be doing business for the entire time that the L-1 employee is working in the United States.
There are provisions to allow a new office to open in the United States provided that evidence is submitted to the Immigration Service to prove that the new office has a suitable place to do business, a qualifying business structure exists and that the employer has the ability to pay the employee and to begin doing business in the United States.
Each case must be well documented with evidence proving all of the legal criteria are met.
Which Employees Qualify as L-1 Intracompany Transferees?
Intracompany transferees are executives, managers and employees with specialized knowledge. The definition of manager includes an employee who manages an essential function of the business within a qualifying organization. Specialized knowledge employees must have special knowledge of the organization’s product, service, research, equipment, management, or other interests, and its application in international markets, or an advanced knowledge or expertise in the organization’s process and procedures. Classifying the employee in the right category is important, particularly if the company might later want to sponsor the employee for permanent residence. The intracompany transferee petition always should be structured to allow smooth transition to permanent resident status.
A key qualification for all employees is continuous employment abroad with qualifying foreign employer for one year within three years preceding the time of the employee’s application for admission to the United States.
How Long Can L-1 Employee Remain in the United States?
The L-1 is a temporary visa with specific limitations on periods of stay in the United States.
– If the employee is qualified as a manager or executive, he or she may remain in the United States for up to seven years.
– If the employee is classified in the specialized knowledge category, he or she may stay up to five years.
– An exception to these limits exists where the employment in the United States is seasonal, intermittent or an aggregate of six months or less per year.
How Does the Company Get an L-1 Visa for its Employees?
A petition for an L-1 visa must be filed by the company with the Immigration Regional Service Center having jurisdiction over the place of intended employment. Except for a company, which is opening a new office in the United States, the initial petition may be granted for a three-year period and renewed in two-year increments up to the maximum permitted stay. New offices are limited to an initial twelve-month period with extensions depending on the business performance of the new office. Once the petition is approved, the employee may apply for an L-1 visa at a U.S. Consulate abroad. If the employee is in the United States and maintaining some other legal status, he or she may apply for a change of status in the United States.
Spouse and unmarried children under 21 years old of intracompany transferees may be granted L-2 visas. An L-2 visa holder is permitted to work in the United States.
Possibility of Converting L-1 to Permanent Residence
The foreign company and its US establishment may apply for permanent residence (“Green card”) for intracompany executives and managers. A separate petition must be filed with the Citizenship and Immigration Services. The company must demonstrate that its on-going and extensive business activities require the transferring executives or managers to work permanently in the United States. No approved Labor Certification is required for intracompany executives or managers. However, employees with specialized knowledge must obtain a Labor Certification from the Department of Labor prior to submitting an immigrant petition with the Citizenship and Immigration Services.
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