U.S. Visa

Explaining the L-1 intracompany transfer visa

The L-1 (intracompany transfer) visa is used to transfer key employees among an international group of companies.

To qualify for an L-1 visa, one must be transferring from an overseas company to a properly related U.S. business. 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 percent 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 year within the preceding three years before 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 year of employment.

Executive capacity, managerial capacity and specialized knowledge

The following definitions of executive capacity, managerial capacity and specialized knowledge are critical to eligibility for an L-1 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 them.

Managerial capacity

An assignment within an organization or a department, subdivision or component which 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.

If the individual is responsible for supervising employees, they must have authority to hire and fire or recommend such, as well as other actions. If they are not supervising employees, they must serve at a senior level within the organization with respect to the function managed, and exercise 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

Defined as particular knowledge possessed by an individual of the organization’s product, service, research, equipment, techniques or management teams 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.

Filing the L-1 petition through USCIS vs. the U.S. Consulate

USCIS Filing

In many cases, the U.S. employer files the initial L-1 petition with the appropriate United States Citizenship and Immigration Services (USCIS) regional service center on behalf of the employee beneficiary (this is known as an “individual filing”). 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 and paying the prevailing government fee. The expedite fee is in addition to the normal filing fee and must be paid by separate check or money order.

For expedited applications, USCIS guarantees that within 15 calendar days of receipt of the premium processing request the employer will receive either an approval notice, a notice of intent to deny, a request for evidence or notice of investigation for fraud or misrepresentation. If USCIS fails to meet the 15-calendar day guarantee, it will refund the expedite fee, but it will continue to process the petition expeditiously.

Once approval of an L-1 petition is granted by USCIS, the transferring employee, their spouse and minor children (under the age of 21) apply for the L-1 and L-2 visas, respectively, at a U.S. Consulate or Embassy.

U.S. Consulate Filing

Certain companies are eligible to sponsor L-1 employees with a direct filing through the U.S. Consulate, bypassing the above-described individual filing through USCIS. This is known as the L-1 Blanket process. In general, to qualify for this process, the U.S. company and other qualifying organizations must have obtained approval of petitions for at least 10 L managers, executives or specialized knowledge professionals during the previous 12 months; or have U.S. subsidiaries or affiliates with combined annual sales of at least $25 million; or have a U.S. work force of at least 1,000 employees.

The U.S. company must first obtain L-1 Blanket approval through USCIS by filing a petition with evidence showing that the listed affiliate entities meet the eligibility requirements. Upon approval, USCIS issues a notice listing the qualifying global entities with a validity period which is initially three years and may be extended indefinitely thereafter.

The U.S. company’s applicants may use the L-1 Blanket Approval Notice to apply for the L-1 visa directly at the U.S. Consulate if they worked at one of the global entities listed on the Approval Notice for at least one year within the preceding three years in a qualifying position.

The L-1 Blanket is often the more cost-effective and timely strategy for eligible companies who regularly transfer key intracompany employees to the U.S.

Period of admittance

In most circumstances, initial admission to the U.S. for L-1 managers, executives and specialized knowledge employees is a maximum period of three years. Extensions of stay in increments of two years may be granted.

Managers and executives can remain in the U.S. in L-1 status for up to seven years while specialized knowledge employees can remain for five 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 months per year.

Spouses and minor children are entitled to remain in the U.S. for the same period as the principal.

Spouses of L-1 visa holders

USCIS recently released updated guidance that has significantly impacted spouses of L-1 visa holders, who are all eligible for employment authorization in the L-2S (L-2 Spouse) visa category.

Since early 2022, USCIS has considered spousal employment authorization to be part of L-2S status (other dependents will not have automatic employment authorization). Therefore, L-2S dependent spouses no longer require an EAD to be employed and are considered as authorized to work incident to status. Rather, the spouse must be in possession of a valid L-2S I-94 record.

These updated policies are a ramification of a settlement reached in mid-November 2021 in Shergill, et al. v. Mayorkas. Learn more about the settlement and the updated guidance for L-2 dependent spouses here.

L-1 Intracompany ‘new office’ visa

An organization that has been doing business in the U.S. for less than one year is considered a “new office” for L-1 visa purposes.

Petitions approved on behalf of managers, executives and employees who will be employed at new offices will be valid for only one 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 must establish that the employees qualify as a “true” executives or managers (i.e., the start-up company has shown sufficient growth to support executives or managers).

Failure to show an increase in factors such as gross income and staffing levels may result in a denial of the extension request.

Further reading: What is the intracompany ‘new office’ visa?

As always, please do not hesitate to contact Garfinkel Immigration Law Firm at 704-442-8000 or via email with any questions.

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