60 Years of Immigration Experience
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L-1 Visa and Permanent Resident Status Based on Being a Multinational Manager or Executive
A multinational company must be able to rotate its cadre of management through a variety of situations and places so as to make a cohesive integration of its many international offices. Even a small foreign company may have the need to transfer a key employee to the United States. The United States government has created a temporary visa for multinational companies to use for transferring their executives, managers and employees with specialized knowledge to offices in the United States. This visa is called the L-1 intracompany transferee visa.
There are several requirements which must be met in order to qualify for the visa. First, the structure of the multinational company must fit within the statutory definitions of “affiliate”, “subsidiary” or “branch office”. Second, the foreign employee must qualify under the law as a “manager”, “executive” or an employee with “specialized knowledge”. Finally, the foreign employee must be otherwise eligible for a nonimmigrant visa.
The Immigration and Naturalization Service will only approve a petition from a qualifying American entity. The American business must be a parent, subsidiary, affiliate, or branch of the foreign company from which the employee is transferring. Each of these business relationships is defined by regulation and case law. Joint ventures and other non-traditional ownership relationships create uncertain qualification. Tasoff and Tasoff was instrumental in changing the law in regard to joint ventures qualifying to petition for an L-1 visa by participating as lead counsel in Matter of Smith Tools (Board of Immigration Appeals). The requirements regarding control and ownership, which are necessary to obtain an L-1 visa, are complex and we recommend consultation with an immigration attorney prior to the creation of any business entity in the United States.
In addition to the qualifying relationship, the American entity must be “doing business”. There are certain criteria and restrictions on newly created American businesses or those that have not operated for at least one year. Despite these limiting restrictions, in many cases is it possible to prepare L-1 visa applications for executives and managers of newly opened United States offices.
The intended transferring employee must have worked for the qualifying company abroad for six months within the preceding three years in an executive, managerial, or specialized knowledge capacity. There are several factors that go into deciding whether a person meets the criteria for one of the three qualifying capacities. Title alone will not make a foreign employee qualified. Qualifying employees must fit within one of the following employment categories:
- A “manager” must be responsible for a department, subdivision, function or component of the organization. The manager must supervise and control the work of other supervisors, professionals or managerial employees, or manage an essential function within the organization. The duties and responsibilities of the manager as well as staffing levels and authority are all factors considered when deciding if the position qualifies.
- An “executive” directs the management of the organization or major component or function of the organization. The executive makes policy and has discretionary decision-making authority to implement the policy.
- An employee with “specialized knowledge” is a person with special knowledge of the company’s product and its application in international markets or has an advanced level of knowledge of the processes and procedures of the company.
Grants of the initial L-1 visa are valid up to a period of three years except where the employee is coming to open or be employed in a new office in which case the initial stay is only for one year. The statutory caps on the period of stay are seven years for managers and executives and five years for employees with specialized knowledge.
Procedurally, once the petition has been submitted with I.N.S. it can take several weeks for it to be approved. Once the petition is approved it is sent to an American Consulate abroad where the individual can apply for a non-immigrant L-1 visa. In order to qualify the applicant must show substantial ties to his or her residence abroad and satisfy the Consul that he or she will leave the U.S. once their temporary assignment in the U.S. is completed. If the alien is already legally in the U.S. (often times as a visitor or in business status) he or she may also apply for a change of status to L-1 without leaving the country. However, if the alien then leaves the U.S. (except for trips to Mexico or Canada of less than 30 days) he or she will have to apply for and receive an L-1 non-immigrant visa from an American Consulate abroad in order to return to the United States.
In consideration of the long-term plan to have a manager or executive permanently transferred to the United States entity, obtaining the L-1 intracompany transferee visa is an excellent first step to permanent residence (“green card” status) in the United States. There are special provisions in the law that allow qualified intracompany transferees (whether or not they obtained an L-1 visa) to qualify as “priority workers” and avoid long quota and processing backlogs. This factor should not be overlooked in offering the manager or executive an added incentive for moving to the United States.
Once the employer has decided to employ the L-1 manager or executive on a permanent basis, a Priority Worker Petition (I-140) is filed with the USCIS. The alien (and his or her husband or wife and unmarried children under 21) can concurrently file and adjustment of status at the local INS District Office or have the case processed at the appropriate American Consulate or Embassy in his or her home country. If an adjustment of status application is filed then the INS will issue a “work permit” (employment authorization document) to the applicant and his or her spouse so they can legally work in the United States while the application is pending. It is also possible to obtain “advance parole” so that the applicant and family members can travel abroad and return to the United States during this period of time. At the interview a letter reconfirming that the employer still intends to employ the alien on the terms stated in the application must be submitted. Assuming the applicant and his family members are otherwise qualified (no serious criminal or deportation record, fraud, etc.) the INS will grant the adjustment of status application or the consul will issue an immigrant visa. The alien and any accompanying family members will then be issued their “green cards”. The alien should be placed on the employer’s payroll and should work for the employer for a reasonable period of time thereafter. Five years after permanent resident status is granted the foreign worker is eligible to apply for U.S. citizenship.
Our office, based on our knowledge of the law and many years of experience will advise you regarding the best course of action to take in your particular case and will prepare and file all necessary applications and correspondences. Usually, all that is required of the employer is to review and sign the application, petition, and reconfirmation letters and provide general documentation about the company’s operations and the job offer. Since the law and procedures are the same throughout the nation we can handle cases anywhere in the United States. If you have any questions regarding the above, please do not hesitate to call our office.
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