L-1 Visa Application
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L1 Visa: The Application Process
The L-1 Visa application process is a multi-step process that involves a foreign worker and a United States-based employer. In this article, we begin by discussing the requirements for the L-1 visa. Then we explain the process for applying for the visa. We also Identify some of the common issues or concerns that arise in the L-1 application process.
Which Employers Qualify for the L-1 Visa?
The L-1 visa is a non-immigrant visa that allows employers in the United States to petition to transfer an employee in a foreign country to come and work at the US company.
The L-1 application process must be initiated by a US Employer. The foreign worker cannot petition on her own behalf.
For a US Employer to petition for a foreign worker to come to the US company, the company must be US-based parent, subsidiary, branch, or qualified affiliate of a foreign company.
The foreign worker must be an employee of the foreign, parent, subsidiary, branch or affiliate company. So, the petition is for the transfer for an existing employee.
A parent company generally has a controlling ownership interest in the subsidiary company. A branch is a co-equal operational branch of a company. An affiliate is a closely related company that shares operational and leadership structure.
The US company must currently exist and be carrying on business or it must demonstrate that it will be in business in the United States in the near future. Doing business means providing goods or services within the United States. The employee must be coming to the Untied States to either get the business started or to work in the business operations in the US. So, at a minimum, there must be two companies operating (or in the process of beginning operations) within the United States and one other country (the country from which the applicant is applying). This must remain true throughout the entire period of the L-1 visa issuance. If one company shuts down or ceases carrying on business, the L-1 visa can/will be revoked.
Also, the employee must have been an employee of the foreign company for a minimum of 12 months during the preceding three year period.
If either the employer or employee fails to meet these qualifications, then the the L-1 visa cannot be used.
It is important to know that the L-1 visa does not automatically lead to permanent residency status (or green-card status). The L-1 allows for the employee to visit for a temporary period, but she must have the intent to return to her home country. There is an exception to this general rule. The L-1 is a dual-intent visa. This means that the employee can petition for other visas or green card status while she is in the United States on the L-1 Visa. So, the L-1 does not complete the close the door to remaining in the United Sates permanently. This is certainly not the case for many temporary visas.
What Type of Employee Qualifies for the L-1 Visa?
The L-1 visa allows employers to petition for two categories of employee to come to the United States. The process for applying is very similar, but there is unique substantiation requirements (requirements for supporting documents) depending upon the category of visa.
The first category is the L-1A visa. This visa is strictly for executives or managers of the foreign company seeking to transfer to the US subsidiary or parent company. There are very detailed requirements for who qualifies as an executive of the foreign or US company. USCIS defines executive capacity as follows under section 101(a)(44)(B) of the Immigration and Nationality Act:
The term "executive capacity" means an assignment within an organization in which the employee primarily-
(i) directs the management of the organization or a major component or function of the organization;
(ii) establishes the goals and policies of the organization, component, or function;
(iii) exercises wide latitude in discretionary decision-making; and
(iv) receives only general supervision or direction from higher level executives, the board of directors, or stockholders of the organization.
(C) 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.
An individual’s title is generally indicative of her role as a company executive. It may be more difficult for an employee to qualify as a manager for purpose of the L-1 visa. The USCIS defines managerial capacity as follows under section 101(a)(44)(A) of the Immigration and Nationality Act.
The term "managerial capacity" means an assignment within an organization in which the employee primarily-
(i) manages the organization, or a department, subdivision, function, or component of the organization;
(ii) 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;
(iii) 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
(iv) 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.
If the employee is unable to meet the executive or manager qualifications, she can look toward the second category of the L-1 visa. The L-1B is for employees with specialized knowledge or skills seeking to come to the US subsidiary or parent company. Whether an employee has “specialized knowledge or skills” depends upon the unique situation or operations of the company. Generally, it means the foreign employee must be highly necessary or a “key employee” for the company’s business. Interestingly, a degree or specific qualifications are not required for the L-1B visa. Generally, the company must show that the individual has special skills or ability that other US employees do not have. The company may also need to demonstrate that it would be too difficult to train a US employee for the role.
Bother the L-1A and L-1B visas are available in unlimited numbers to employees of international companies. The L-1A is granted initially for a three-year period. It can be extended up to a maximum of 7 years. The L-1B visa initially for three years, but it can be extended up to a maximum of five years.
What is the L-1 Visa Filing Process?
The L-1 application process begins with the US employer filing a petition on behalf of the foreign employee. The petition is USCIS Form I-129. There is a special L-Visa supplement and a requirement to provide substantial documentation of the employee’s eligibility.
Generally, the L-1 application will provide sufficient documentation to substantiate that the employee is a qualifying employee of a qualifying foreign company. Also, the documentation must demonstrate that the individual is not barred from travel to the United States and the individual has the intention to return to their home country.
Here is a list of documents that are required for employee:
• Copy of Passport I.D. Page;
• Copy of U.S. Visa I.D. Page (if applicable);
• Copy of I-94 Arrival/Departure Record (if applicable);
• Employment Verification Letter;
• Payroll Summary for the past year;
• Payroll Stubs/ Earnings Statements –for the last year;
Here is a list that is required for the company:
• Documentation establishing that the beneficiary has worked in the foreign company for a continuous period of over one year in the preceding three years in an executive or managerial capacity, or was employed in a position involving specialized knowledge and that the beneficiary is coming to the U.S. to work in an executive, managerial, or a specialized knowledge position;
• Documentation regarding the beneficiary’s position held at the foreign affiliate – e.g. position description; work product; projects completed, etc.;
• Company statement describing the proposed position explaining the specialized knowledge required, current and future company projects;
• Letter from CEO/company official explaining how the individual with specialized knowledge is integral to company operations;
• Copies of articles of incorporation or equivalent;
• Copy of certificate of Registration or equivalent
• Copy of board authorization (startup organizations);
• Company list of shareholders;
• Copy of company’s most recent federal income tax return;
• Copy of company lease for business premises;
• Copies of telephone bills and yellow page directory listing, including directions for business premises;
• Copies of profit & loss statements;
• Copy of balance sheet;
• Copies of company bank statements-for the past year;
• Copy of company brochures, marketing material, website print outs;
• Color photographs of business premises (interior and exterior);
• Company organizational chart (including employee names and their job titles);
• Company list of employees, with job titles and a brief job description of each position;
• Evidence of establishment of a U.S. subsidiary or parent company (if one does not yet exist);
There are also numerous documents required from the US Company, including:
• Company statement including a job description and requirements for the beneficiary's position. If the beneficiary will be applying for the L-1B visa classification, the statement should include a description of the specialized knowledge they possess integral to the company’s operations to do business in the United States;
• Copies of articles of incorporation;
• Copy of organizational minutes;
• Copy of IRS Letter for EIN issuance;
• Copy of company stock ledger;
• Copies of issued stock certificates;
• Copies of bank statements-past year;
• Copy of business license;
• Copy of seller’s permit;
• Employee organizational chart
• Copy of commercial lease for business premise (square footage and floor plan)
• Copies of telephone bills and yellow page directory listing;
• Color photographs of business premises (interior and exterior);
• Business plan
Once the employer files the I-129 with L supplement and documentation, it will be reviewed by the USCIS. General processing takes between 3 and 5 months. If the employer wishes to pay for “Premium Processing”, she can file for I-907 along with the submission. The USCIS will provide a response with 15 calendar days of receipt of the application. It is advisable to include a self-addressed stamped envelope for sending the reply. Premium filers will receive an email.
If you receive approval from the USCIS, you will go for consular processing. The consular officer will provide a visa stamp. This allows the employee to travel to the United States. Once in the United States, the employee will go through customs and receive a Form I-94 Arrival/Departure record.