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L-1 Intracompany Transferee

Summary

The L-1 category applies to foreign nationals who have been employed abroad in executive, managerial or specialized knowledge capacities, and who are coming to the United States temporarily to continue rendering services to the same or a related employer.

Petitioner

The corporate form is preferred, but not required; partnerships and sole proprietorships also may qualify to transfer certain employees.

Either the foreign ("sending") company or the ("receiving") company in the United States may be the petitioner, that is, the business entity which requests that the employee abroad (the beneficiary) be classified as an L-1 intracompany transferee.

The petitioner must be able to establish the existence of foreign operations to which the beneficiary can reasonably be expected to be transferred at the end of his/her stay.

The petitioner also must be actively engaged in providing goods and/or services in the United States and abroad, either directly or indirectly, with employees in both countries for the duration of the beneficiary's stay in the United States.  The mere presence of an agent or office in the U.S. or abroad is insufficient.

Qualifying Relationship

Ownership and control are essential.  Ownership means the legal right of possession with full power and authority to control.  Control means the right and authority to direct the management and operations of the business.

The entities must be related in one of the following ways:

Parent:  Any business which has subsidiaries;

Branch:  An office or operating division of the same employer;

Subsidiary:  Parent directly or indirectly owns more than half and has control; OR parent directly or indirectly owns 50% of a 50:50 joint venture and has equal control and veto power; OR parent directly or indirectly owns less than half of the entity but has control;

Affiliate:  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 controlled approximately the same share or proportion of each entity.

Relationships based on contractual, licensing, and franchise agreements do not qualify.

Beneficiary's Employment Abroad

The beneficiary must be an employee.  Consulting and independent contractual agreements are not generally acceptable to establish employment.

The beneficiary must have been employed full-time for at least one continuous year of the three years immediately prior to transferring to the United States.  

Authorized periods of stay in the United States for the foreign employer do not interrupt the year of employment, but such periods do not count toward the continuous one-year-of-employment-abroad requirement.

Nature of Employment

For the qualifying one-year period, the beneficiary must have been employed in an "executive," "managerial" or "specialized knowledge" capacity.  The beneficiary's proposed employment in the United States also must fall within one of these three capacities.

There is no requirement that the beneficiary occupy the same kind of position in the United States.  For instance, a specialized knowledge employee abroad may be transferred to fill a managerial position in the United States.

Procedure

Either the U.S. or the foreign entity (the "petitioner") initiates the process to have the foreign national beneficiary placed in the L-1 category.  The petitioner must submit a petition, with supporting documentation, to U.S. Citizenship and Immigration Services (USCIS) in the United States.

If USCIS APPROVES the petition, it issues a Notice of Approval and notifies the American. consulate (or U.S. Immigration officials at the U.S. port of entry for persons who do not require a visa) of the petition approval.  The beneficiary then may apply at the  U.S. consulate for an L-1 visa (or, if a visa is not required, at a U.S. port of entry for admission to the United States).

If USCIS DENIES the petition, it sends a Notice of Denial.  A petitioner may appeal the denial to the USCIS’ Administrative Appeals Unit in Washington, D.C., but this process is time-consuming and not practical.

Blanket L Petition.  Some petitioners who either already have, or who qualify for, a “Blanket L Petition” approval may side-step filing the L-1 petition with USCIS.  Instead, the foreign national employee (the transferee) may present the petitioner’s Blanket L-based petition directly to the U.S. consulate where the request for a visa will be made (or in some cases directly to U.S. Immigration officials at the U.S. port of entry).  The advantage of applying for an L-1 visa based on an already approved Blanket L Petition is that the USCIS-decision-making stage is avoided entirely in favor of the decision occurring at the U.S. consulate (or at the U.S. port of entry).

New Office

If the U.S. entity has been "doing business" for less than one year, certain limitations are imposed on the L-1 approval.  For instance, the initial approval period is restricted to one year.  Extensions are possible, but generally require the petitioner to show that its new office in the United States has expanded its size and scope of activity by the end of the first year.

Time Limits

An L‑1 petition may be approved for an initial period of up to three years.  Executives and managers may remain for a total of seven years; specialized knowledge employees may stay for up to five years. 

Filing Fees

The basic petition filing fee, payable by all employers who file petitions with USCIS, is $460.  In addition, the law requires all employers or employees to pay an initial, one-time “fraud prevention fee” of $500. 

Spouses and Children

Spouses and children are accorded "L-2" classification.  They may accompany or later follow to join the principal L-1 transferee.  L-2 spouses may work during the period of time that that the principal L-1 transferee holds L-1 status.  Children may not work in the United States, though attending school is permitted.  Spouses and children may remain in the United States for the same length of time as the L-1 transferee.

 

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