The L-1 visa is a temporary, nonimmigrant status that allows qualifying overseas companies to relocate qualifying foreign employees to their U.S. parents, branches, affiliates, or subsidiaries.
What, exactly, do we mean by “qualifying” in the preceding sentence? It depends on the type of L-1 visa you’re interested in.
There are two types of L-1 visas—the L-1A and the L-1B—each of which has different qualification requirements. The L-1A is specifically designed for company bigwigs like executives or upper-level management, while the L-1B is reserved for intra-company transfers of employees with “specialized knowledge.”
In this article, we’ll walk you through the requirements for L-1 employers and L-1A and L-1B employees.
General Requirements for the L-1 Petitioner: The Employer
In general, the qualifications for L-1 employers, whether L-1A or L-1B, are the same. To qualify for an L-1 visa application, the petitioning employer must:
- Have a “qualifying relationship” with a foreign company.
-Qualifying relationships can take such forms as the petitioning company being a parent, branch office, subsidiary, or affiliate of the foreign business entity; these are collectively referred to as “qualifying entities” or “qualifying organizations.”
-Note that a business entity can be any of the following: corporations, nonprofits, and religious or charitable organizations.
-For more detailed information on qualifying entities, click here.
- Be, or plan to be, “doing business” as an employer in the United States and in at least one other country, directly or through a qualifying organization, for the duration of the beneficiary’s stay in the United States as an L-1 visa holder.
-While the business must be viable, there is no requirement that it be engaged in international trade.
-“Doing business” in this context is defined as the regular, systematic, and continuous provision of goods and/or services by a qualifying organization. “Doing business” does not merely mean the presence of an agent or office of the qualifying organization in the United States and abroad.
Some of these employer requirements are relatively seamless to meet and do not require extensive documentation, especially if the employer is a well-established company. However, when a company is small or in its early stages, as the petitioning employer, it should be prepared to provide extensive documentation to establish its L-1 eligibility. We therefore strongly recommend that such companies seek the professional services of an experienced immigration attorney. To talk to one of our seasoned L-1 attorneys, click here.
L-1A Employee Requirements
The requirements for an L-1A beneficiary comprise the following:
- The alien employee must have worked abroad for the overseas company for a continuous period of one year within the three years immediately preceding his or her admission to the United States. Any time spent working in the United States will not count toward the one year of required employment.
- The employee must have been employed abroad in an executive or managerial position, otherwise known as a “qualifying position.”
-For more information on qualifying positions, visit our page on the topic here.
- The employee must be relocating to the U.S. to provide services in an executive or managerial capacity for a branch of the same employer or one of its qualifying organizations.
-According to federal law, “executive capacity” refers to the employee’s ability to make decisions with wide latitude and without much oversight.
-“Managerial capacity” generally refers to the ability of the employee to supervise and control the work of professional employees and to manage the organization, or a department, subdivision, function, or component of the organization. It may also refer to the employee’s ability to manage an essential function of the organization at a high level, without direct supervision of others.
- The employee must be qualified for the position by virtue of his or her education and experience.
- The employee must intend to depart the United States upon completion of his or her authorized stay.
L-1B Employee Requirements
Unlike L-1A beneficiaries, prospective L-1B holders are not required to work as a high-level managers or executives. Instead, they must be recognized as having “specialized knowledge.”
U.S. Citizenship and Immigration Services (USCIS) released a policy memorandum in 2015 that superseded previous guidance on adjudicating L-1B petitions. Particularly of note is the threshold the agency stipulates that a beneficiary must meet or surpass in terms of possessing “specialized knowledge.” Because section 214(c)(2)(B) of the Immigration and Nationality Act (INA) does not explicitly define specialized knowledge in the L-1B context, USCIS imbued the term with clearer meaning.
According to USCIS, beneficiaries seeking L-1B classification will be determined to have specialized knowledge if they have either “special” knowledge or “advanced” knowledge (or both). USCIS defines the two terms as follows:
- 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 particular industry
- 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
To ascertain whether a prospective L-1B beneficiary possesses “specialized knowledge,” whether the knowledge is “special” or “advanced” (or both), petitioning employers should consider the following questions:
- Does the alien possess knowledge of foreign operating conditions that is of significant value to the petitioning organization’s U.S. operations?
- Has the alien been employed abroad in a capacity involving assignments that have significantly enhanced the employer’s productivity, competitiveness, image, or financial position?
- Can the alien’s claimed specialized knowledge only be gained through prior experience with the petitioning organization?
- Does the alien possess knowledge of a product or process that can’t be easily transferred or taught to another individual without significant economic cost or inconvenience?
- Is the alien’s knowledge sophisticated, complex, or of a highly technical nature?
- Is the alien’s knowledge demonstrably and particularly beneficial to the petitioning organization’s competitiveness in the marketplace?
Answering one or more of these questions in the affirmative may be sufficient for demonstrating the L-1B standard of “specialized knowledge.” Once a petitioning employer is able to determine this, the sort of evidence it should include in its L-1B application can be any of the documentary evidence in the following non-exhaustive list:
- Documentation of the alien’s training, work experience, or education during which the alien has been using or developing the claimed specialized knowledge
- Evidence of the impact the alien’s transfer would have on the petitioner’s U.S. operations
- Evidence that the alien is qualified to contribute significantly to the U.S. operation’s knowledge of foreign operating conditions as a result of knowledge not generally found in the petitioning organization’s U.S. operations
- Contracts, statements of work, or other documentation that shows the alien possesses knowledge that is particularly beneficial to the petitioner’s competitiveness
- Evidence, such as correspondence or reports, that establishes that the alien has been employed abroad in a capacity involving assignments that have significantly enhanced the petitioner’s productivity, competitiveness, image, or financial position
- Personnel or in-house training records establishing that the alien’s claimed specialized knowledge can only be gained via prior experience or training with the petitioner
- Curricula and training manuals for in-house training, financial documents, or other evidence that serves to demonstrate that the alien possesses knowledge of a product or process that can’t be easily transferred to another individual without the petitioner incurring significant economic cost or inconvenience
- Patents, trademarks, licenses, or contracts the petitioner gained as a result of the alien’s work
- Evidence that the alien’s knowledge is of a process or product that is sophisticated, complex, or of a highly technical nature (though not necessarily proprietary)
- Payroll documents, federal or state wage statements, documentation of other forms of compensation, resumes, organizational charts, or similar evidence showing the positions the alien held and the compensation the alien received in the petitioning organization
After determining and compiling the requisite evidence to demonstrate that a prospective L-1B beneficiary possesses “specialized knowledge,” the petitioner must also ensure the alien satisfies the following additional criteria for L-1B eligibility:
- The employee must have worked abroad for the overseas company for a continuous period of one year within the three years immediately preceding his or her admission to the United States. Any time spent working in the United States will not count toward the one year of required employment.
- The employee must seek to enter the United States to render services in a specialized knowledge capacity to a branch of the same employer or one of its qualifying organizations.
- The employee must intend to depart the United States upon completion of his or her authorized stay.
- Following the L-1 Reform Act of 2004, L-1B nonimmigrants will be in violation of status if they are “stationed primarily” at the worksite of an employer other than the petitioner, and if one of the following occurs:
-They are principally under the control and supervision of the unaffiliated employer, or
-Their placement at the unaffiliated worksite is “essentially an arrangement to provide labor for hire for the unaffiliated employer,” rather than placement in connection with the provision of a product or service for which specialized knowledge specific to the petitioning employer is necessary.
Establishing a new office in the U.S.? There are more requirements for you.
One of the benefits of the L-1 program is that it gives companies the opportunity to relocate employees to the United States to expand their business and open up new offices. For foreign companies that want to send an L-1 employee to the United States for the purpose of establishing a new office, the following criteria must also be met:
- The company must have secured a sufficient physical premises to house the new office.
- The employee has been employed as an executive or manager for one continuous year in the three years preceding the filing of the petition; and
- The new U.S. office will support an executive or managerial position within one year of the underlying petition’s approval.
For more information on the L-1 category, refer to the following links: