Alternative Solutions to the H-1B Cap
For various reasons, the H-1B visa isn't always a good fit for those seeking employment-based visas. If the professional in question has been employed for at least one continuous year within the past three years by a company who wishes to transfer him or her to a U.S-based parent, branch, affiliate, or subsidiary and the professional is in a managerial, executive, or "specialized knowledge" capacity, the L-1 visa may be a viable alternative to the H-1B.
The L visa has two categories: L-1A for workers in positions of managerial or executive capacity and the L-1B for workers who possess specialized knowledge. The same statute and regulations govern both the L-1A category and the employment-based first preference category (EB-1-3). Like the H-1B, the L-1 does not preclude an individual from seeking lawful permanent residence while pursuing or being present in the U.S. on an L-1 visa. However, unlike the H-1B, the L-1 visa has no annual quota.
L-1A Visa: Managerial or Executive Capacity
The duties of a professional in a "managerial capacity" are defined as:
1) manages the organization, department, subdivision, function or component;
2) supervises and controls the work of other supervisory, professional or managerial employees or manages an essential function within the organization or department or subdivision of the organization
3) has the authority to hire and fire or recommend personnel actions (if other employees directly supervised), or if no direct supervision, functions at a senior level within hierarchy and
4) exercises discretion over day-to-day operations of the activity or function.
A person may be a manager or executive even if he or she is the sole employee of a company that utilizes outside independent contractors or where business is complex.
The duties of a professional in an "executive capacity" are defined as:
1) directs the management of the organization or a major component or function;
2) establishes goals and policies;
3) exercises wide latitude in discretionary decision making; and
4) receives on general supervision or direction from higher level
L-1B Visa: Specialized Knowledge Capacity
Specialized knowledge is defined to include a person who has special knowledge of the company product, service, research, equipment, techniques, management or other interests and their application in international markets, or has an advanced level of knowledge of processes and procedures of the company. The definition includes a type of specialized knowledge that is different from that generally found in a particular industry but need not be unique. Someone with specialized knowledge is further defined as:
1) not simply a skilled worker, but someone whose advanced level of expertise and knowledge of the employer organization's product, service, research, equipment, techniques, management, or other activity is not readily available in the U.S labor market;
2) Possesses knowledge that is valuable to the employer's competitiveness in the market place;
3) Is uniquely qualified to contribute to the U.S. employer's knowledge of foreign operating conditions;
4) Has been utilized as a key employee abroad and has been given significant assignments which have enhanced the employer's productivity, competitiveness, image, or financial position;
5) Possesses knowledge that can be gained only through extensive prior experience with that employer; and
6) Possesses knowledge that is of a certain complexity that contributes to the uninterrupted operation of the specific business for which the applicant's services are sought.
Employment Qualifications
In order to qualify for an L visa, the beneficiary must be employed continuously abroad for 1 of the past 3 years preceding his or her application through employment by the parent, branch, affiliate, or subsidiary of a U.S. company. An employing entity can be a for-profit, nonprofit, religious, or charitable organization; it makes little difference as long as the qualifying relationship between the foreign and U.S-based entity is clear. In order to qualify as an L visa employer, the foreign and U.S-based entities must establish one of the following relationships:
1) a majority stock ownership in both companies;
2) joint ventures in which less than majority ownership exists, but control is sufficient to qualify as a subsidiary/affiliate relationship;
3) proprietorships accompanied by a petitioner's statement of ownership and evidence, such as a license to do business, record of registration as an employer with the IRS, business tax returns, or other evidence which identifies the owners of the business; or
4) ownership by a common group.
Church organizations and other complicated employer relationships may also qualify on a case-by-case basis.
If the U.S. company is less than one year old, it must show proof of physical premises, such as a lease or deed. In certain instances, the beneficiary is coming to the U.S. to open a new office. Special regulations apply to new businesses, as they do not have proof of extensive business activities in the U.S., which is normally required evidence for the issuance of an L visa.
The attorneys at Harrison Alo, Attorneys at Law, have extensive experience in filing L-1A and L-1B visas for beneficiaries coming to the U.S to work for both established entities and to open new branches. Whether you are a prospective L-1 employer or candidate, the attorneys at Harrison Alo are available to answer your questions.
