L-1 Classification
The L-1 nonimmigrant classification enables the transfer of experienced foreign executives, managers, and specialized knowledge workers/professionals, of a qualifying organization, to the US to perform in such capacities for the petitioning employer, which is a parent, subsidiary, affiliate, or branch of the same qualifying organization.
In some instances, a foreign organization may transfer an experienced foreign executive, manager, or specialized knowledge worker to the US to open or be employed by a new office of the foreign organization, if the new office in the US has been doing business for less than a year, and has a parent, subsidiary, affiliate, or branch relationship with the foreign organization.
The L-1 nonimmigrant classification has two sub-classifications, depending on the primary capacity of employment of the individual (beneficiary) for the US position:
· L-1A status/visas for managers and executive transferees; and
· L-1B status/visas for specialized knowledge transferees.
For most qualifying organizations, the petitioning employer must file a L-1 individual petition with US Citizenship and Immigration Services (USCIS) in the US, in order for the L-1A or L-1B transferee to be approved for the respective sub-classification.
Qualifying Organization
To be able to sponsor a L-1 intracompany transferee, in addition to meeting general requirements, the organization must have a qualifying relationship (parent, subsidiary, affiliate, or branch), and be doing (or will be doing) business as employer in the US and at least one additional country directly, or through a qualifying entity/operating division/office (parent, subsidiary, affiliate, or branch), at least for the entire duration of the intracompany transferee’s stay in the US (international trade not generally required). The qualifying relationship must be based on ownership and control.
An intracompany transferee may wholly or partly own the qualifying organization, such as cases involving an international executive/manager who will transfer to the US to oversee, develop, and expand a new US business enterprise of his or her foreign organization.
Beneficiary
A foreign executive, manager, or specialized knowledge worker/professional may qualify for the L-1 classification where:
· The foreign executive, manager, or specialized knowledge worker/professional has been employed overseas in such capacity with the qualifying organization for at least 1 continuous year within the immediately preceding 3 year period; and
· The individual is being transferred to the US temporarily as an executive, manager, or specialized knowledge worker/professional to perform services in the US for the petitioning employer which is a parent, subsidiary, affiliate, or branch of the same qualifying organization.
As detailed above, both the US position and foreign position must be primarily in a qualifying capacity—executive, manager, or specialized knowledge worker/professional, although the US position and foreign position can differ in the specific qualifying capacity. In many cases, however, the US position and foreign position capacities will be consistent.
The definitional criteria applicable to executive, manager, and specialized knowledge worker/professional capacities are as follows:
Executive
· Directs the management of the organization or a major component or function of the organization;
· Establishes the goal and policies of the organization, component, or function;
· Exercises wide latitude in discretionary decision; and
· Receives only general supervision or direction from higher level executives, the board of directors, or stockholder of the organization.
Manager (Personnel or Function)
· Manages the organization, or a department, subdivision, function, or component of the organization;
· 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;
· 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 organization hierarchy or 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.
Specialized Knowledge Worker/Professional
The individual possesses:
· Special knowledge—knowledge of the petitioning organization’s product, service, research, equipment, techniques, management, or other interests and its application in international markets that is distinct or uncommon in comparison to that generally found in the industry; or
· Advanced knowledge—knowledge of or expertise in the petitioning organization’s specific processes and procedures that is not commonly found in the relevant industry and is greatly developed or further along in progress, complexity, and understanding than that generally found within the employer.
An individual is a specialized knowledge professional if he or she meets the above requirement, and is also a member of a profession (i.e. has at least a bachelor’s degree). The individual must be a specialized knowledge professional if the individual is seeking to obtain a L-1B visa under an approved L-1 Blanket Petition (discussed later herein). In contrast, a specialized knowledge worker applying pursuant to a L-1B individual petition does not have this member of a profession/degree requirement.
L-1A - Executives/Managers
Although the definitional criteria for executives and managers are different, both of these capacities are within the L-1A sub-classification, and involve achievement of organizational goals by controlling, directing, organizing, and planning major organizational functions through the work of other employees.
Executives and managers do not include:
· First-line supervisors who oversee day-to-day work of nonprofessional employees;
· Individuals who primarily perform hands-on tasks to create the organization’s products or deliver its services; or
· Individuals who primarily perform ordinary operational activities alongside other employees.
Through direct or indirect supervisory and control of managerial or lower-level executive employees, executives primarily spend their time directing the organization’s management, or a major component or essential function of the organization. An executive may not necessarily have managerial or executive subordinates who directly report to them, as the executive may oversee a major/essential component/function (i.e. Chief Financial Officer) that still has a controlling impact on lower-level executives and managers in the organization.
To qualify as a manager (personnel or function manager), the individual must primarily perform managerial responsibilities, including management of the actual organization, or a department, subdivision, function, or component of the organization; and exercise authority and discretion over day-to-day functional activity operations.
For a personnel manager, the individual must primarily and directly supervise and control the work of other professional or managerial/supervisory employees; and have the authority to take (or recommend to HR) personnel actions over such directly supervised employees, including hiring, firing, promoting, training, approving leave authorization, and so on. A “professional” position refers to one that is a member of the professions, meaning that the position typically requires at least a bachelor’s degree.
For a function manager, which is a position that does not typically involve direct supervision of other employees (unless incidental to management of the function), the individual must primarily manage a clearly defined essential function which is core to the organization. The individual must act at a senior-level within the organization’s hierarchy in relation to the managed function, and exercise discretion over the essential function’s day-to-day operations, in contrast to performing the hands-on administrative/operational tasks of the function.
L-1B Specialized Knowledge Workers/Professionals
To qualify as a specialized knowledge worker or professional, at the time of filing, the individual must satisfy the requisite criteria, and possess either special and/or advanced knowledge, which is a relative comparison against others. This knowledge could have been acquired while working for the foreign organization in a specialized knowledge capacity (or even an executive or managerial capacity). The individual, however, is not required to be of a particular rank or elevated compensation level, as the focus is on the knowledge, and not the organizational hierarchy or pay scale. Further, multiple employees within the same organization may possess the same type of specialized knowledge based on similar experience, education, and training, and this aspect would not necessarily disqualify an individual from being eligible for L-1B.
Although the knowledge must not be commonly held throughout the industry, such knowledge does not need to be narrowly held in the petitioning organization, unique, or proprietary. It is possible that the individual acquired required knowledge for the position from a different business, such as similar organizations based in the same trade of products/services and processes/procedures (or technologies and techniques).
General or basic knowledge of common industry processes and procedures and basic elementary knowledge of the petitioning organization’s product and services possessed by others in the industry or within the petitioning organization will not be sufficient.
For special knowledge, the focus is on the individual’s knowledge of the petitioning organization’s products and services, including the organization’s research, equipment, techniques, production, and manufacturing, as well as application in international markets. In comparison to similarly employed workers in the specific industry, the special knowledge must be distinct or uncommon.
For advanced knowledge, the focus is on the individual’s knowledge of the petitioning organization’s processes and procedures, where such knowledge must be commonly found in the specific industry. In comparison to other workers of the employer, the advanced knowledge must be greatly developed or further along in understanding, complexity, or progress.
For determining whether an individual’s knowledge is specialized, certain factors which may be holistically considered, among others, include: the knowledge is specifically beneficial to the petitioning organization’s market competitiveness; the knowledge covers the petitioning organization’s foreign operating conditions which are of high value to the US operations; the product/service process/procedure knowledge is sophisticated, complex, or of a highly technical nature; the transfer of the product/service process/procedure knowledge to another person, such as through training, is not realistically feasible due to substantial economic costs and training, experience, and education requirements; the obtainment of the specialized knowledge normally requires hands on prior experience with the petitioning organization; and/or the foreign position involved assignments that greatly enhanced employer performance and position. Where one or more of these factors apply, it is more likely that the individual will be deemed as having specialized knowledge, although these factors are not a specific requirement.
As supported above, the knowledge should not be commonly held or lack complexity. If the knowledge can be easily and conveniently transferred to another person, such aspect would undercut such knowledge as being considered special or advanced.
For L-1B, the US position must require a person with the necessary specialized knowledge. If the US business already has employees with such knowledge, this situation could impact whether the individual’s transfer to the US is truly necessary. To support that the individual’s transfer is truly necessary, the petitioning organization should demonstrate the need for another person with similar knowledge, as well as the difficulty to transfer/teach someone else; how the individual’s job duties will actually be different from other employees in the US; the economic inconvenience and disruption of operations (US and/or abroad) of the qualifying organization if the individual cannot be transferred to the US; the degree to which the individual’s specialized knowledge will benefit the successful operating conduct of the petitioning organization; and whether the total compensation package of the individual will be comparable (in dollar value) with that of US peers at the US operation.
L-1B is not available to an individual who will be placed primarily at the worksite of an employer other than the petitioner (or its parent, subsidiary, affiliate), while also being principally controlled/supervised by an unaffiliated employer; or where such unaffiliated worksite placement is essentially a labor for hire arrangement for the unaffiliated employer. To remain L-1B eligible, the individual must be controlled/supervised by the petitioning employer; and be provided as part of an arrangement for exchange of services/products between the petitioning employer and the unaffiliated employer (not a labor for hire arrangement). The individual’s specialized knowledge specific to the petitioning employer must be necessary for such services/product exchange arrangement.
New Office
For an experienced foreign executive, manager, or specialized knowledge worker who will be transferred to the US to open or be employed by a “new office”—an organization that has been doing business in the US through a parent, subsidiary, affiliate, or branch for less than one year—additional requirements apply. For a new office L-1 individual petition, the filing must clearly indicate the petitioner is requesting adjudication under the new office provisions and explain how the special requirements are met:
New Office L-1A Individual Petition (Executive or Manager)
· Obtainment of sufficient physical premises to house the new office;
· The executive/manager has been employed overseas as an executive/manager (not specialized knowledge worker) with the qualifying organization for at least 1 continuous year within the 3 year period preceding the petition filing, and the individual’s employment in the US involves executive/ managerial authority over the new operation; and
· Within one year of L-1A petition approval, the intended US operation will support an executive/manager position, as supported by information including:
o Proposed Nature of the Office—entity scope, organizational structure, and financial goal description;
o Investment and Financial Ability—US investment size and foreign entity financial ability to pay the executive/manager and commence doing business in US; and
o Foreign Entity—organizational structure.
For initial business stages, the executive/manager can be more actively involved in day-to-day operations, as long as the executive/manager retains authority and intent to hire staff; and wide decision-making latitude over organization management and goals.
New Office L-1B Individual Petition (Specialized Knowledge Worker)
· Obtainment of sufficient physical premises to house the new office;
· The business entity in the US is or will be a parent, subsidiary, affiliate, or branch of the foreign organization; and
· The US petitioner has the financial ability to pay the specialized knowledge worker and commence doing business in the US.
An approved new office L-1 individual petition is limited to a period of 1 year or less. To extend the new office L-1 individual petition for the same beneficiary beyond this period, for up to an additional 2 years, the new office L-1 individual extension petition must provide the following documentation:
· Evidence—The foreign and US entities are still Qualifying Organizations;
· Evidence—The US entity has been doing business;
· Statement—The individual’s performed duties for the prior year, and the individual’s duties to be performed under the initial extension petition;
· Statement—Description of new operation staffing, including employee count, position types held, employee wage payment (evidence), if the beneficiary will be employed in an executive/manager capacity; and
· Evidence—US operation financial status, such as documentation of company capitalization, foreign company financial resources committed, tax returns, accountant reports, bank statements, profit and loss statements, board of director meeting minutes, articles of incorporation, and by-laws.
After USCIS approval of the initial new office L-1 individual extension petition, the petitioner will no longer be subject to the new office requirements for subsequent individual L-1 extension petitions.
L-1 Duration
For a L-1A (Executive or Manager), the initial approved L-1A validity period will be up to 3 years, where extensions in 2 year increments are available for a maximum aggregate L-1A period of stay of 7 years (unless in US for seasonal or intermittent work for less than 6 months per year).
For a L-1B (Specialized Knowledge Worker/Professional), the initial approved L-1B validity period will be up to 3 years, where an extension of up to 2 years is available for a maximum aggregate L-1B period of stay of 5 years (unless in US for seasonal or intermittent work for less than 6 months per year). Notwithstanding the foregoing, in certain cases, it may be possible for a L-1B (Specialized Knowledge Worker/Professional) to be converted into a L-1A (Executive or Manager) in the US, and be eligible for the maximum aggregate L-1A period of stay of 7 years. For conversion from L-1B to L-1A, there are stringent requirements that must be met and these conversion case-types are highly scrutinized.
As detailed earlier, for an approved new office L-1 individual petition, the maximum initial stay of the executive, manager, or specialized knowledge worker who is entering the US to establish the new office will be up to 1 year. Where USCIS approves the initial new office L-1 individual extension petition, the individual’s L-1A or L-1B status may be extended for up to an additional 2 years. For further extensions, the regular L-1 requirements will apply, and the individual will be subject to the maximum aggregate period of stay as detailed above, L-1A (7 years) or L-1B (5 years), unless in the US for seasonal or intermittent work for less than 6 months per year.
If the individual has reached the 5 or 7 year maximum, he or she must be physically outside of the US for at least one year (except for brief visits for business or pleasure), before he or she can reapply for L-1, assuming the individual will be able to meet the L-1 requirements anew.
Time spent in the US in H-1B status (within the last 6 years) does count against the 5 and 7 year maximum limits for L-1B and L-1A status, respectively.
L-1 Dependents
By separate application, the L-1 beneficiary’s spouse, and unmarried children under the age of 21, may be eligible for L-2 dependent status/visas, in connection with the beneficiary’s L-1 status. The beneficiary’s spouse is also eligible for work authorization incident to the “L-2S” status.
L-1 Blanket Petition
For larger international organizations involved in commercial trade or services, a L-1 Blanket Petition Program exists, which enables the petitioning employer to apply for and obtain advance USCIS approval of itself, and its qualifying group of related business entities/operating divisions/offices (the parent, subsidiaries, affiliates, and branches), as a qualifying organization.
The L-1 Blanket Petition requirements include: the petitioner has a US office that has been doing business for 1 year or longer; the petitioner has 3 or more domestic and foreign subsidiaries, affiliates, or branches; the petitioner and each entity are engaged in commercial trade or services; and the petitioner and other qualifying organizations have:
· received at least 10 L-1 petition approvals in the prior 12 months;
· US subsidiaries or affiliates with combined annual sales of at least $25 million; or
· A US workforce of at least 1,000 employees.
Where the petitioning employer has obtained a L-1 Blanket Petition Approval from USCIS, instead of filing L-1 individual petitions with USCIS for L-1A or L-1B transferees, the petitioning employer may instead prepare L-1A or L-1B blanket visa applications for qualifying beneficiaries to apply for L-1A or L-1B visas (if a visa is required) at US Embassies/Consulates abroad.
L-1 Amendment
After the L-1 petition is approved, if there will be a change in approved relationships, a change in employment capacity (i.e. specialized knowledge position to managerial/executive position), additional qualifying organizations, transfer of employment of beneficiary from one company to another in the same organization, or any information which would affect the beneficiary’s eligibility for L-1 status, the petitioner must file an amended petition with USCIS.
Different rules apply for L-1 Blanket Petition amendments.
L-1 Petition Process (General)
The L-1 individual petition is prepared and filed with USCIS. After approval of the L-1 individual petition, if the beneficiary is outside of the US, the beneficiary applies for a L-1 visa at a US Embassy/Consulate abroad (if a visa is required). After obtaining the L-1 visa, the beneficiary will have to travel to the US, and be admitted to the US at the US Port of Entry in L-1 status, where an electronic I-94 is then issued by US Customs and Border Protection (US CBP). For an extension of L-1 status in the US, an extension petition is prepared and filed with USCIS. Where approved, USCIS will issue an individual L-1 approval notice that has the beneficiary’s new paper I-94 attached to it.
For a petitioning organization that has an approved L-1 Blanket Petition, a L-1 blanket visa application can be prepared, which a beneficiary outside of the US may use to apply for a L-1 blanket visa at a US Embassy/Consulate abroad (if a visa is required). Where approved by the US Embassy/Consulate, the beneficiary will be issued a stamped L-1 approval notice and blanket L-1 visa. The beneficiary will have to travel to the US, and be admitted to the US at the US Port of Entry in L-1 status, where an electronic I-94 is then issued by US CBP. For an extension or renewal of L-1 status, the beneficiary may follow the same process. Alternatively, an extension petition can be prepared and filed with USCIS. Where approved, USCIS will issue a L-1 approval notice that has the beneficiary’s new paper I-94 attached to it.
Under the United States-Mexico-Canada Agreement (USMCA), Canadians are not typically required to obtain a L-1 visa at a US Embassy/Consulate prior to seeking US admission in L-1 status. Further, Canadians may present the actual L-1 petition (individual or blanket) to US CBP directly when seeking US admission in L-1 status at the US-Canada land border or US Pre-clearance inspection stations at airports in Canada. Where approved, the Canadian beneficiary will be admitted to the US in L-1 status, and an electronic I-94 is then issued by US CBP. The CBP officer will send a copy of the L-1 petition to USCIS, where USCIS will generate and send out a receipt and approval notice of the L-1 petition.
L-1 Petition Processing Time
For L-1 petitions filed with USCIS, regular processing will be around 6 months, although the processing time is subject to fluctuate. For an additional fee, premium processing is available for L-1 petitions filed with USCIS, which may allow a decision on the L-1 petition within 15 business days. Where the L-1 petition is ultimately approved, USCIS will issue a formal L-1 approval notice.
For beneficiaries applying with L-1 blanket visa applications at US Embassies/Consulates, and Canadian beneficiaries applying for L-1 at the US-Canada land border or US Pre-clearance inspection stations, processing time will generally be more favorable (in comparison to L-1 individual petitions which must be adjudicated by USCIS).
L-1 Fees
The required L-1 petition filing fees will depend on the type of L-1 petition, the type and size of the L-1 employer, as well as whether the petitioner already employs a large percentage of L-1A/L-1B/H-1B employees. The estimated cost range is from $695 to $6,985, where legal and administrative fees for attorney assistance would be an additional amount. The estimated cost range does not include the cost of optional premium processing ($2,805) for a particular L-1 petition; L-2 dependent applications; filing a response to a request for evidence (RFE) or notice of intent to deny (NOID); or filing a motion or appeal, each of which would entail additional costs (as applicable).
For L-1 blanket applications, the fees will typically be less since such applications (based on an approved L-1 Blanket Petition) can be directly submitted with a US Embassy/Consulate (or US-Canada land border or US Pre-clearance inspection stations at airports for Canadians).
L-1 RFE or NOID
For some L-1 petitions filed with USCIS, post-filing, USCIS may issue a RFE or a NOID, which would require a formal response (simple, moderate, or complex). The issuance of a RFE or NOID does impact the processing time of the L-1 petition (regular and premium processing), and depending on the issues raised by USCIS (simple, moderate, or complex), could pose a substantial challenge for ultimate approval of the L-1 petition. Timely consulting with an experienced immigration attorney is essential for properly preparing and filing the L-1 petition, as well as making the L-1 petition as strong as possible to reduce the risk of a RFE or NOID. Although there is not a USCIS fee required to prepare and file a formal response to the RFE or NOID (as applicable), an additional legal and administrative fee would typically be necessary for attorney assistance.
L-1 Denial
If a L-1 petition filed with USCIS is ultimately denied, depending on the reasons for the denial, it may be possible to file a motion or an appeal of the denial decision. An appeal entails a request for a different authority, USCIS Administrative Appeals Office (AAO), to review the denial decision of the L-1 petition. A motion to reopen requests the USCIS office that denied the L-1 petition to review its denial decision, based on new facts—those not previously submitted in the proceeding—as supported by affidavits or other documentary evidence. A motion to reconsider requests the USCIS office that denied the L-1 petition to review its denial decision, based on an incorrect application of law or policy.
The appeal or motion must be submitted with the appropriate form, filing fee, and documentation within the required time period. The AAO works to process appeals (and motions) within 180 days, and USCIS service centers work to process motions within 90 days, although these processing times are not guaranteed.
The filing of an appeal or motion does not delay the L-1 denial decision from going into effect (or extend the previously set departure date). Further, it is not certain that the appeal or motion will ultimately be successful, such as to reverse the unfavorable decision on the L-1 petition.
Timely consulting with an experienced immigration attorney is essential for determining the best strategy for a L-1 denial decision based on the circumstances.
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If you would like our assistance with a L-1 petition, RFE, NOID, motion, or appeal, please contact our office for a private and confidential consultation.