Publications

August, 2009

INTRA-COMPANY TRANSFEREES (L-1)

To qualify, the L-1 Visa applicant must have been continuously employed abroad for one of the past 3 years preceding an application by a parent company, branch, affiliate or subsidiary of the intended employer company in the U.S. The work to be done must be to continue in a managerial or executive position or one involving specialized knowledge.

QUALIFICATION REQUIREMENTS OF THE EMPLOYER

The company abroad of the company in the U.S. must have a majority stock holding position in the domestic company or vice versa, or a 3rd company must have a majority interest in both companies. In a larger company, less than a majority ownership may qualify if control of the affiliate company is established. Control may be proven by a common name, sharing and exchange of company personnel, cross directorships, or sharing of technical, financial and joint research.

If the U.S. company has only been formed for less than one year, a lease must be submitted to indicate physical premises in the U.S. Both the U.S. company and the foreign company must be engaged actively in business.

MANAGERIAL, EXECUTIVE OR SPECILIZED SKILL OF PROSPECTIVE EMPLOYEE

A) MANAGERS:

A manager must have directed the organization, supervised and controlled the work of others, or managed an essential function of the organizations and have had the authority to hire and fire personnel and directed day to day operations while working for the affiliate company abroad. The designated manager must have the responsibility to do the same tasks in the U.S.

B) EXECUTIVE:

An executive directs the management of the organization, establishes goals and policies; has discretionary decision making capacity and only receives direction from top executives of the company, or members of the Board of Directors. This had to have been performed by the Executive abroad and will have to be done in the U.S for the domestic company.

C) SPECIALIZED KNOWLEDGE:

The specialized employee has had to have special knowledge, of the company’s product, service, research equipment, techniques, and managerial practices abroad and will be coming to the U.S. to apply this knowledge of the company in the U.S.

NEW OFFICES

When a new parent, subsidiary, branch or affiliate is formed in the U.S. and needs to employ an overseas manager or executive or employee of specialized knowledge and the domestic company doesn’t yet have substantial business activities in the U.S. because or its recent opening, evidence must be submitted that a lease has been executed and that the designated employee from overseas has worked for one of the previous three years for the foreign affiliate company and that the intended operations of the domestic company will support a managerial or executive position or employee with special knowledge and/or experience within one year. Information must be submitted to establish the scope of the prospective business, the organizational structure, the financial goals, the size of the U.S. venture and the financial ability of the foreign company to pay the designated employee if the domestic company is not yet capable of doing so. For this reason the newly formed company will only be approved for one year. This period may be extended by showing that the business is active and in operation.

SPOUSES AND CHILDREN

Spouses and children may receive dependent L-1 status and receive up to 7 years, the same as for the principal spouse, who is a manager and executive and 5 years maximum for specialized knowledge principal employees.

EXPEDITED PROCESSING

An L-1 petition may receive expedited processing by paying an expedited processing fee that then requires the USCIS to render a decision for the L-1 petition within 30 days after the completed petition has been filed.

MULTINATIONAL EXECUTIVES AND MANAGERS

MAY QUALIFY FOR PERMANENT RESIDENCE

An L-1A executive or manager may qualify under the first employment preference. Permanent residence may be obtained by the L-1 executive or manager that without the necessity of obtaining a labor certification that would otherwise require proof that the salary offered meet the prevailing wage in the U.S. for the position and also that the petitioner cannot find an equally qualified and available employee in the U.S. This cumbersome process is avoided for the L-1 Manager or Executive. The 1st preference is also advantageous because the first preference priority category is normally current and the other preferences are frequently delayed, hence the L-1 status for Executive and Manager is advantageous for permanent residence.

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New York Immigration Lawyers > Immigration Publications > August 2009