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 same statutes and regulations govern both the L-1A category and the employment-based first preference category (EB-1). The L-1 also has many similarities to the H-1B. 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, which makes it an attractive option in light of the restrictive H-1B limit.
The L visa has two categories: 1) L-1A for workers in positions of managerial or executive capacity and 2) L-1B for workers who possess specialized knowledge.
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
An individual who possesses "specialized knowledge" is defined as an individual 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 outside of the U.S. for at least one of the three years preceding his or her application, and must be employed 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.-based company is less than a year old, it must show proof of its 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 it is unlikely that they have proof of extensive business activities in the U.S., which is normally required evidence for the issuance of an L visa. In such cases, petitioning companies must submit evidence showing sufficient premises to house a new office, the qualifying relationship with the foreign employer, the ability to compensate the foreign worker, the size of the investment, the size and organization of the foreign operation, and evidence the intended U.S. operation will support the executive or managerial position within one year.
The attorneys at Harrison Alo, Attorneys at Law, have extensive experience in filing L-1A and L-1B visas, both for beneficiaries coming to the U.S to work for established entities and for those who intend to open new branches. Whether you're a prospective L-1 employer or candidate, the attorneys at Harrison Alo are available to answer your questions and address your concerns.
