L-1A/L-1B Visa

L-1 Intracompany Transfer Visa

The L-1 (Intracompany Transferee) visa is the most commonly used visa to accomplish the transfer of key employees among an international group of companies. In most instances, qualified persons can obtain their visa within one (1) to three (3) months after their employer files a complete petition with the United States Citizenship & Immigration Services (“USCIS”).

To qualify for an L-1 visa, one must be transferring from an overseas company to a properly related U.S. company. The individual must have served in either an executive, managerial or “specialized knowledge” capacity with the overseas company and must be transferring to the U.S. company to serve in one of these specified capacities. The U.S. company and the overseas company must be related by at least 50% common ownership and/or control. The transferee must have been employed by the overseas entity in a managerial, executive or specialized knowledge capacity for at least one (1) year within the preceding three (3) years prior to the transfer. Further, any time spent in the U.S. prior to the transfer does not count toward (but does not interrupt) the required one (1) year of employment.

The following definitions of executive and managerial capacity and specialized knowledge are critical to eligibility for this visa:

Executive capacity – an assignment within an organization in which the employee primarily directs the management of the organization or a major component or function of the organization, establishes organizational goals and policies, exercises wide latitude in discretionary decision making and receives only general supervision from higher level executives, the board of directors or the stockholders of the company. An executive will normally have managers who report to him.

Managerial capacity – an assignment within an organization in which the employee primarily manages the organization or a department, subdivision, or component thereof; 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 thereof; if supervising employees, has the authority to hire and fire or recommend such (and other personnel) actions; if not supervising employees, serves in a senior level within the organization with respect to the function managed; and exercises discretion over the day-to-day operations of the activity or function for which the employee has authority. A first-line supervisor will not be considered a manager unless the employees supervised are professional or unless the first-line supervisor manages an essential function.

Specialized knowledge – particular knowledge possessed by an individual of the organization’s product, service, research, equipment, techniques, management or other interests and its application in international markets, or an advanced level of knowledge or expertise in the organization’s processes and procedures. Specialized knowledge is not widely known, even within the company. A high level of experience or technique in the operation of industrial equipment, i.e., the knowledge of a skilled employee, is not necessarily specialized knowledge. We have recently seen an increase in scrutiny of specialized knowledge petitions by certain USCIS Regional Service Centers.

The U.S. employer normally files the initial L-1 petition with the appropriate USCIS regional service center. Current processing time varies from four (4) to sixteen (16) weeks. The USCIS’s “Premium Processing Service” allows businesses to request expedited adjudication on certain pending and newly filed petitions and applications, including L-1 petitions, by filing a completed Form I-907 (Request for Premium Processing Service) and paying a fee of $1,225. This fee is in addition to the normal filing fee of $325 and must be paid by separate check or money order. The USCIS guarantees that within 15 calendar days of receipt of the Premium Processing Request and fee, the employer will receive either an approval notice, a notice of intent to deny, a request for evidence or a notice of investigation for fraud or misrepresentation. If USCIS fails to meet its 15-calendar-day guarantee, it will refund the $1,225 but will continue to process the petition expeditiously. (The only exception to the above filing procedure is for Canadian citizens, for whom the L-1 petition may be filed at the same time as the individual’s application for admission to the U.S. at a Class A port of entry.) Once approval of an L-1 petition is granted by the USCIS, the transferring employee, his spouse and minor children (under the age of 21) apply for L-1 and L-2 visas, respectively, at a U.S. Consulate or Embassy. (Canadian citizens are visa-exempt and are not required to apply for visas at a U.S. Consulate.)

Spouses of L-1 visa holders are now eligible for employment authorization. Spouses may apply for employment authorization through their regional USCIS Service Center following admission to the U.S. in the L-2 status. Employment authorization for a spouse is granted in maximum two-year increments.

Initial admission to the U.S. for L-1 managers, executives and specialized knowledge employees, except those entering the U.S. to be employed at a “new office” (discussed below), may be admitted for a maximum period of three (3) years. Extensions of stay in increments of two (2) years may be granted. Managers and executives may remain in the U.S. in L-1 status for up to seven (7) years. Specialized knowledge employees may remain in the U.S. in L-1 status for five (5) years. (These limitations do not apply if the employee does not reside in the U.S. and if the employment is seasonal, intermittent or totals less than six (6) months per year.) Spouses and minor children are entitled to remain in the U.S. for the same period as the principal.

An organization that has been doing business in the U.S. for less than one (1) year is considered a “new office” for L-1 visa purposes. Petitions approved on behalf of managers and executives to be employed at new offices will be valid for only one (1) year, during which time the company is expected to grow. Prior to the conclusion of the first year, the U.S. company and the employee must petition to secure additional time in L-1 status. At the time the petition and application for extension are filed, the company and employee must establish that the employee qualifies as a “true” executive or manager (i.e. the start-up company has shown sufficient growth to support an executive or manager). Failure to show an increase in factors such as gross income and staffing levels may result in a denial of the extension request.

Travelling in L-1A/L-1B status as a Canadian National

Canadian citizens are not required to obtain a visa stamp in their passports in order to reenter the U.S. in L-1A/L-1B status. Upon leaving the country for a trip to Canada or Mexico for a period of thirty (30) days or less, a Canadian should explain that s/he is a Canadian citizen and should be allowed to keep the I-94 card. The Form I-94 card is authorization to reenter the U.S. following such trips.

If traveling to a third country, Canadians should relinquish the Form I-94 and the lower right portion of the approval notice upon departure and present a Canadian passport and the original I-797B “Notice of Action Approval Notice” issued by the U.S. Citizenship and Immigration Service (USCIS) upon application for readmission.

They will receive a Form I-94 (Arrival/Departure Record) upon entry and the Immigration Inspector should note classification as H-1B. That Form I-94 should be valid for multiple entries for the duration of the H-1B petition approval.