Publications

September, 2010

INTRA-COMPANY TRANSFEREE (L-1)

2010 celebrates the Intra-Company Transferee Visa because this visa helps small businesses to come to the U.S. to prosper. The visa helps provide employment to Americans that is the ticket to success in helping our economy grow. The Immigration Service is favorable to the L-1, granting it in as little as one month. Evidence of a reasonable financial statement must be furnished and the formation of a subsidiary or affiliate in the U.S. is necessary with a lease and a business plan showing that the transferee has worked for the foreign company for at least one year within the past 3 years in an executive or managerial capacity or in a specialized skill must be proved.
The Treaty Trader or Treaty Investor Visa by contrast requires a review by a U.S. Consulate abroad. In practice this is cumbersome because the Consulates are stringent in examining the finances of the foreign parent abroad or affiliated company. The Consulates with painstaking thoroughness review the business plans resulting in delays and after Consulates fail to act at all, leaving the applicants in limbo.

ADJUSTMENT OF STATUS PENDING
When an L-1 in good status files for adjustment of status, he/she may still extend the L-1 status and may travel while the adjustment is pending without a Parole. The L-1 must be coming to resume employment with the same employer and is in possession of a valid L visa. Spouses and children are included in this benefit.

ONE YEAR FOREIGN EMPLOYMENT
One year of previous employment within the past 3 years with an affiliated company abroad is a necessary component of an applicant’s requirement. Part of a year spent working for an affiliate, subsidiary or branch in the U.S. does not qualify. As long as the work is abroad for a parent, subsidiary or affiliate and amounts to more than one year in the previous three years, the applicant qualifies. A combination of part time work may fulfill the one year requirement if each part time work is for different affiliated companies and amounts to one full year in the aggregate.

QUALIFYING ORGANIZATION
Less than a majority ownership but control may be enough to qualify. If a company has only 50% ownership, but has control over policy and administration, it would be sufficient. If there are two parent companies (a joint venture), owning together 50% of the subsidiary, the subsidiary would then reflect ownership by both parents.

NEW OFFICE
When a new parent, subsidiary, branch or affiliate opens a new business in the U.S., a new office must be leased, namely that physical space has been rented, and a business plan must indicate that within one year an executive or managerial position will be possible. To extend an L-1 it is necessary to show evidence that the business is operating and active.

PROSPECTIVE EMPLOYEES
A) MANAGERS:
Direct the organization, supervise and control the work of others, or manage essential functions of the organizations and have the authority to hire and fire personnel and direct day-to-day operations and having had these responsibilities for more than one year abroad prior to coming to the U.S. to work for the domestic affiliate.
B) EXECUTIVES:
Direct the management of the organization, establish goals and policies; have discretionary decision making capacity and only receive direction from top executives of the company, or members of the Board of Directors. These responsibilities need to have been performed by the Executive for an affiliate abroad and need 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 in the U.S. for the affiliate here.
Spouses and children may receive dependent L-2 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 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 15 working days after the completed petition has been filed.

An L-1A executive or manager may qualify under the first employment preference for permanent residence. Permanent residence may be obtained by the L-1 executive or manager without the necessity of obtaining a labor certification that requires proof that the salary offered meets the prevailing wage in the U.S. or proof that the petitioner cannot find a qualified and available employee in the U.S. to do the required work. The lst preference is advantageous because the first reference priority category is normally current and the other preferences are frequently deferred.

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New York Immigration Lawyers > Immigration Publications > September 2010