With restrictions being placed on the H-1B visa, employers are looking for other options to hire key employees.
One such option is the L-1 visa category. L-1 visas or “Intracompany Transferees” are for employees of a company abroad who are to be transferred to a U.S. affiliate, parent, subsidiary, or branch entity on a temporary basis. In many situations, the L-1A/B visa category offers more flexibility to employers and their workers.
Certain U.S. employers seeking the classification of aliens as “Intracompany Transferees” may file blanket petitions with the US Citizenship & Immigration Service (USCIS). Under the blanket petition, the USCIS is responsible for determining whether the U.S. employer and its parent, branches, affiliates and/or subsidiaries are qualifying organizations.
In order to be eligible, a foreign national must have, within the preceding three years, been employed abroad for one continuous year by the qualifying organization.
The foreign national must be offered a temporary position in a managerial or executive capacity or a position requiring specialized knowledge.
Specialized knowledge means knowledge by an individual of the petition organization’s product, service, research, equipment, management, interests and applications in international markets, or an advanced level of knowledge or expertise in the organization’s processes and procedures.
Special Note: A specialized knowledge worker or L-1B employee can only remain in the U.S. for up to five years.
Specifically, managerial capacity means an assignment within an organization in which the employees primary function will be to: manage the organization, department subdivision, function or a component of the organization; supervise and control the work of other supervisory, professional, managerial employees or manage essential function within the organization, department or subdivision of the organization; hire and fire and/or recommend employees for promotion and leave authorizations; if no other employees are directly supervised, function at a senior level within the organizational hierarchy with respect to the function managed; and exercise discretion over the day to day operations of the activity or function for which the employee has authority.
First line supervisors are not considered managers unless the employees they supervise are professionals. L-1A’s, however, are not intended to limit managers and executives to persons who only supervise a large number of employees or large enterprises. Special Note: Managers (L-1A) employees can remain in the U.S. for up to seven years.
Executive capacity is defined as an assignment within an organization in which the employees primary function will be to: direct the management of the organization, a major component or function of the organization; establish the goals and policies of the organization, component or function; exercise wide latitude in discretionary decision-making; and receive only general supervision or direction from higher level executives, the board of directors or stockholders of the organization.
Special Note: Executives (L-1A) employees can remain in the U.S. for up to seven years.
As with the H-1B, the L-1 category allows the foreign national to have dual intent, which means that the foreign national can apply for permanent residency or other immigrant status without violating their non-immigrant status. However, those with adjustment of status pending, cannot work on an employment authorization document (EAD) with another company. If an L-1 employee does so, they violate their L-1 status.
Managers and executives fall under the first preference category, allowing foreign nationals of any country to receive permanent residency much faster than other categories. Additionally, spouses of an L-1 employees are allowed to obtain employment authorization (EAD), allowing them to work in the U.S.