Cap City Law - Attorneys for the Business of Life

Attorneys for the Business of Life

What Is An L-1 Visa? An Overview

L-1visa(1)

Written by Susan Pai, Immigration Attorney, Cap City Law, PS

 

An L-1 visa is a non-immigrant visa category that allows multinational companies to transfer certain employees from their foreign offices to their U.S. offices. It is designed to facilitate the temporary transfer of employees who possess specialized knowledge or executive/managerial skills within the company.

There are two main types of L-1 visas:

  1. L-1A visa: This visa is for executives or managers who are being transferred to work in a managerial or executive capacity at a U.S. office of the same employer, parent company, subsidiary, or affiliate.
  2. L-1B visa: This visa is for employees with specialized knowledge, such as knowledge of the company’s products, processes, or procedures, who are being transferred to a U.S. office of the same employer, parent company, subsidiary, or affiliate.

To qualify for an L-1 visa, the employee must have been employed with the foreign company for at least one continuous year within the past three years before applying for the visa. Additionally, the U.S. office must have a qualifying relationship with the foreign company, such as being a parent company, subsidiary, affiliate, or branch.

The L-1 visa is typically granted for an initial period of up to three years, with the possibility of extension for a total stay of up to seven years for L-1A visa holders and up to five years for L-1B visa holders. L-1 visa holders can also bring their dependents, such as spouses and unmarried children under the age of 21, to the U.S. on an L-2 visa. L-2 visa holders are eligible to work in the U.S. after obtaining proper work authorization.

USING THE L-1A VISA TO OPEN A NEW OFFICE IN THE UNITED STATES

An L-1 visa is a great visa for an employee or owner of a company abroad who wants to open a new office in the United States. It allows an executive or manager from a qualifying foreign company to come to the United States to establish a new office for the same employer.

The key features of the L-1A visa for a new office are as follows:

Qualifying Relationship: To be eligible for the L-1A visa for a new office, there must be a qualifying relationship between the foreign company and the U.S. office-to-be. The U.S. office must be a branch, subsidiary, parent, or affiliate of the foreign company. Both the foreign company and the U.S. office must be actively engaged in business.

One-Year Employment Requirement: The employee seeking the L-1A visa must have been employed continuously by the qualifying foreign employer for at least one out of the past three years before applying for the L-1A visa.

New Office Requirement: The U.S. office that the L-1A visa holder plans to open must be a new office. It means the office has been operating for less than one year at the time of the visa application. Additionally, the U.S. office must be able to economically support an executive or managerial position within one year of the visa approval.

Business Plan: As part of the L-1A visa application for a new office, the employer must submit a comprehensive business plan for the new office. The business plan should outline the company’s objectives, business activities, financial projections, marketing strategies, and any other relevant details to demonstrate that the U.S. office is viable and requires an executive or managerial role. There are many vendors who specialize in writing L-1A new office business plans.

Initial Stay and Extension: The L-1A visa for a new office is initially granted for a period of one year. After the first year, the L-1A visa holder may request an extension of stay in the U.S. However, to be eligible for the extension, the U.S. office must have been established and conducting business during the initial one-year period.

Dual Intent: The L-1A visa is considered a “dual intent” visa, meaning the visa holder can pursue permanent residency (green card) while on L-1A status without jeopardizing their nonimmigrant visa status.

It’s essential to note that the L-1A visa for a new office is subject to specific requirements and documentation to demonstrate that the new office is genuine and meets the criteria set by the U.S. Citizenship and Immigration Services (USCIS). It is advisable to seek legal counsel or guidance from an immigration attorney to navigate the application process and ensure compliance with the immigration regulations.

WHAT EXACTLY IS A QUALIFYING RELATIONSHIP BETWEEN THE U.S. AND FOREIGN ENTITIES?

In the context of an L-1 visa, a qualifying relationship refers to the legal connection between the U.S. employer (the U.S. entity) and the foreign employer (the foreign entity) that allows for the transfer of employees under the L-1 visa program. The qualifying relationship is a crucial requirement for L-1 visa eligibility.

For an employee to be eligible for an L-1 visa, there must be a qualifying relationship between the U.S. and foreign entities, and these entities should be related in one of the following ways:

Parent-Subsidiary Relationship: This is when the U.S. entity is a parent company or subsidiary of the foreign entity. A parent company owns a significant portion (usually more than 50%) of the foreign entity, while a subsidiary is wholly or partially owned by the U.S. entity.

Here’s an example to illustrate a parent-subsidiary relationship for an L-1A visa application:

Let’s say there is a multinational company called XYZ Corporation, which is headquartered in Country A. XYZ Corporation is engaged in the manufacturing of consumer electronics and has been operating successfully in various countries.

  1. Parent Company (Foreign Entity): XYZ Corporation in Country A is the parent company. It owns and controls various subsidiaries and operates its main business operations from the headquarters.
  2. Subsidiary Company (U.S. Entity): XYZ Corporation decides to establish a subsidiary in the United States, which they name XYZ Corporation USA. The U.S. subsidiary, XYZ Corporation USA, is a legally separate entity but is wholly owned and controlled by the parent company, XYZ Corporation in Country A.

In this scenario, if XYZ Corporation wants to transfer one of its executives or managers to oversee the newly established U.S. subsidiary, they could apply for an L-1A visa for that employee. The qualifying relationship between XYZ Corporation in Country A (the parent company) and XYZ Corporation USA (the U.S. subsidiary) allows for the transfer of key employees under the L-1A visa program.

To support the L-1A visa application, XYZ Corporation would need to provide evidence of the parent-subsidiary relationship, such as:

  • Corporate documents showing the ownership structure of XYZ Corporation and its U.S. subsidiary.
  • Business registration and incorporation documents for XYZ Corporation USA.
  • Financial statements demonstrating the financial ties and support from the parent company to the U.S. subsidiary.
  • Organizational charts showing the employee’s position within the parent company and their intended role in the U.S. subsidiary.

This evidence is essential to establish the legal connection between the foreign parent company and the U.S. subsidiary, demonstrating that the L-1A visa applicant is eligible for the visa under the parent-subsidiary qualifying relationship.

Branch Office Relationship: This is when the U.S. entity is a branch of the foreign entity. A branch office is an extension of the foreign entity, but it is located in the United States and conducts business on its behalf.

In the context of an L-1A visa application, a “branch office” refers to a type of business establishment or entity that is an extension of a foreign company operating in the United States. A branch office is one of the qualifying relationships that can make an employee eligible for an L-1A visa to transfer from the foreign company to the U.S. branch office.

Here’s a more detailed explanation of a branch office in the context of an L-1A visa application:

  1. Foreign Company (Parent Entity): The foreign company, often referred to as the parent entity, is a company incorporated and operating outside the United States. It could be a corporation, a partnership, or another legal entity conducting business activities in its home country.
  2. Branch Office (U.S. Entity): The foreign company decides to expand its operations and establish a presence in the United States. To do this, it opens a branch office in the U.S. The branch office is an extension of the foreign company and operates under its name and control, but it is physically located in the United States.
  3. Business Activities: The U.S. branch office engages in similar or related business activities to the foreign company. It might offer the same products or services, represent the parent entity’s interests, or handle specific operations relevant to the overall business.

For an employee to be eligible for an L-1A visa based on a branch office relationship, they must be an executive or manager within the foreign company and intend to come to the U.S. to manage the operations of the branch office. The L-1A visa allows multinational companies to transfer key executives or managers from the foreign company to the U.S. branch office to oversee its establishment and management.

To support the L-1A visa application based on a branch office relationship, the employer must provide evidence of the branch office’s existence, the foreign parent company’s control over the U.S. branch office, and the managerial or executive role of the L-1A visa applicant within both the foreign company and the U.S. branch office. This evidence may include:

  • Corporate documents showing the establishment of the branch office and its relationship with the foreign company.
  • Proof of the foreign company’s ownership and control of the branch office.
  • Organizational charts demonstrating the L-1A visa applicant’s position in the foreign company and their intended role in the U.S. branch office.
  • Evidence of the U.S. branch office’s business activities and its need for an executive or manager from the foreign company.

Establishing the branch office relationship is critical to demonstrate the eligibility of the L-1A visa applicant and the legitimacy of the L-1A visa petition for the purpose of transferring employees to manage U.S. business operations.

Affiliate Relationship: An affiliate relationship exists when both the U.S. company (the U.S. entity) and the foreign company (the foreign entity) are subsidiaries of the same parent company, or they are under common ownership or control by a third company (the parent company). In this scenario, the U.S. entity and the foreign entity are related through their connection to the same parent company or a third company that owns or controls both entities.

Here’s a more detailed explanation of an affiliate relationship in the context of an L-1 visa application:

  1. Parent Company (Third Company): There is a third company, which is usually the parent company or a company with significant ownership or control over both the U.S. entity and the foreign entity. This parent company is the entity that establishes the affiliate relationship between the U.S. and foreign entities.
  2. Foreign Entity: The foreign entity is the company incorporated and operating outside the United States. It could be a corporation, a partnership, or another legal entity conducting business activities in its home country.
  3. U.S. Entity: The U.S. entity is the company incorporated and operating within the United States. It could be a corporation, a partnership, or another legal entity conducting business activities in the U.S.
  4. Affiliate Relationship: The U.S. entity and the foreign entity are affiliated because they are both under the common ownership or control of the parent company (third company). As affiliates, they have a legal relationship that allows them to qualify for the L-1 visa program.

For an employee to be eligible for an L-1 visa based on an affiliate relationship, they must be an executive, manager, or employee with specialized knowledge within either the U.S. or foreign entity, and they intend to come to the U.S. to work in a managerial, executive, or specialized knowledge capacity.

To support the L-1 visa application based on an affiliate relationship, the employer must provide evidence of the affiliation, such as corporate documents showing the ownership or control by the parent company, organizational charts demonstrating the employee’s position in the U.S. and foreign entities, and other documentation to establish the legitimacy of the L-1 visa petition.

Establishing the affiliate relationship is crucial to demonstrate the eligibility of the L-1 visa applicant and the qualifying relationship between the U.S. and foreign entities for the purpose of transferring employees between the affiliated companies.

The qualifying relationship is essential because the L-1 visa program is designed to facilitate the transfer of key employees between related entities for the purpose of conducting business operations in the United States. The visa allows multinational companies to transfer executives, managers, and employees with specialized knowledge from their foreign offices to their U.S. offices to improve their operations, share expertise, and expand their business presence.

When applying for an L-1 visa, the employer must provide definitive evidence of the qualifying relationship, such as corporate documents, ownership records, financial statements, and other relevant documentation to establish the legal connection between the U.S. and foreign entities. This evidence is crucial to demonstrate the legitimacy of the L-1 visa petition and the eligibility of the employee for the visa.

WHAT IS THE DURATION OF AN L-1 VISA?

The validity period of an L-1 visa depends on the type of L-1 visa, the specific circumstances of the applicant, and the discretion of the U.S. Customs and Immigration Services (USCIS) or the U.S. consular officer who grants the visa. Here’s a general overview of the validity periods for different types of L-1 visas:

  1. L-1A Visa (Managerial or Executive Employees): The initial validity of an L-1A visa is typically granted for up to one year for new office petitions or up to three years for established companies. After the initial period, L-1A visa holders can request extensions in increments of up to two years at a time, with a maximum total stay of seven years.
  2. L-1B Visa (Specialized Knowledge Employees): The initial validity of an L-1B visa is also usually granted for up to one year for new office petitions or up to three years for established companies. Similar to the L-1A visa, L-1B visa holders can request extensions in increments of up to two years at a time, with a maximum total stay of five years.
  3. L-1 Commuter Visa: Some L-1 visa holders are exempt from the five and seven year limits and may continue to renew their L-1 visas This exception applies to people who live outside the U.S. and whose jobs in the U.S. are seasonal, intermittent or add up to less than six months each year. Additionally, the limits do not apply to people who live outside the U.S. and commute to the U.S. on a regular basis for part-time employment. The burden is on the employer to show that the applicant meets these criteria and is therefore eligible to indefinitely extend the L-1 status. The validity of an L-1 commuter visa can vary, but it is typically granted for up to one year initially. After the initial period, L-1 commuter visa holders can request extensions in increments of up to two years at a time, with no specific maximum total stay mentioned in the regulations.

It should be noted that the validity period of an L-1 visa does not automatically guarantee the length of stay in the U.S. It is essential to understand the expiration date on the I-94 Arrival/Departure Record issued by U.S. Customs and Border Protection (CBP) at the port of entry. The I-94 determines the authorized period of stay in the U.S., which may be different from the visa validity.

As immigration regulations can be complex and subject to change, it’s advisable to consult with an immigration attorney or qualified immigration professional for specific and up-to-date information regarding L-1 visas and their validity periods.

CAN THE L-1 VISA HOLDER BRING THEIR DEPENDENTS TO THE U.S.?

Yes, the L-1 visa holder can bring their dependents to the United States. The L-1 visa program allows for the inclusion of dependents, including the spouse and unmarried children under the age of 21, under the L-2 visa category. L-2 visa holders are the dependents of L-1 visa holders and can accompany them to the U.S. during their period of authorized stay.

Here are some key points to know about L-2 visas for dependents:

  1. Eligibility: The spouse and unmarried children (under 21) of the L-1 visa holder are eligible for L-2 visas. The L-2 visa holders can be of any nationality.
  2. Work Authorization: L-2 visa holders (spouse and children) are eligible to apply for work authorization in the United States. Once approved, they can obtain an Employment Authorization Document (EAD) and work legally in the U.S. during the period of the L-1 visa holder’s authorized stay.
  3. Study: L-2 visa holders are also allowed to study in the U.S. They can enroll in educational institutions without needing a separate student visa.
  4. Duration of Stay: The duration of the L-2 visa is typically tied to the validity of the L-1 visa. As long as the L-1 visa holder maintains their status, the L-2 visa holders can also stay in the U.S. During the visa validity period, L-2 visa holders can travel in and out of the country.
  5. Dependent’s Employment and Study: L-2 visa holders can study and work in the U.S., but the primary purpose of their stay should still be as dependents of the L-1 visa holder.
  6. Change of Status: If the L-1 visa holder changes their status to a different nonimmigrant visa or applies for permanent residency (green card), the L-2 visa holders can also apply for a change of status accordingly.

It’s important to note that each dependent must apply for an L-2 visa at a U.S. consulate or embassy abroad. They can submit their visa applications along with the necessary documentation to demonstrate their relationship to the L-1 visa holder. If approved, they will be issued L-2 visas, allowing them to join the L-1 visa holder in the United States.

As immigration rules can be subject to change, it’s advisable to consult with an immigration attorney or qualified immigration professional for specific and up-to-date information regarding L-1 and L-2 visas and their related benefits.

CAN I STAY IN THE U.S. FOR 5 YEARS AS AN L-1B THEN 7 YEARS AS AN L-1A?

Yes! Attorney Pai has a proven track record of successfully applying for seven years on the L-1A following successful application of five years on the L-1B for a total L-1 visa stay of 12 years. Call Cap City Law at 360-705-1335 today for help with your L-1 visa today!

 

 

Posted in