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For information about Canadian intracompany transferees, check out the following web site, http://www.dfait-maeci.gc.ca/nafta-alena/temp_entry-e.asp
An "intracompany transferee" means a foreign national who, within three years preceding the time of his or her application for admission into the United States, has been employed abroad continuously for one year by a firm, corporation, or other legal entity or parent, branch, affiliate, or subsidiary thereof, and who seeks to enter the United States temporarily in order to render his or her services to a branch of the same employer or a parent, affiliate, or subsidiary thereof in a capacity that is managerial, executive, or involves specialized knowledge. The foreign national may legitimately come to the United States as a nonimmigrant under the L classification and depart voluntarily at the end of his or her authorized stay, and, at the same time, lawfully seek to become a permanent resident of the United States. In other words, a manager or executive may, ultimately, get a green card through this process.
For a total of $3,500 in attorney's fees, which excludes all costs and filing fees, Tom Youngjohn can prepare and file the initial application, Form I-129, to request L-1 status in the United States. The $3,500 price-tag does not include subsequent "green card" processing. The $3,500 does not include any translation costs, business plan, incorporation, licensing, professional copying costs, or mailing/delivery costs, etc.
The following elements are considered in evaluating entitlement to such L-1 classification in individual cases:
The petitioner is the same firm, corporation, or other legal entity, or parent, branch, affiliate or subsidiary thereof, for whom the beneficiary has been employed abroad;
The beneficiary is a manager, executive, or an foreign national having specialized knowledge, and is destined to a managerial or executive position or a position requiring specialized knowledge;
The petitioner and beneficiary have the requisite employer- employee relationship;
The petitioner will continue to do business in the United States and at least one other country;
The beneficiary meets the requirement of having had one year of prior continuous qualifying experience within the previous three years;
If the beneficiary is coming to open, or be employed in, a "new" office, the requirements described in 9 Foreign Affairs Manuel ("FAM") 41.54 N12 are met;
The beneficiary is not subject to the limitation on readmission for former L and H foreign nationals, or the two-year foreign residence requirement for former exchange visitors; and
The beneficiary is not subject to the intending immigrant presumption of section 214 (b) of the INA.
By mandating a preliminary petition, Congress placed responsibility and authority with Immigration and Naturalization Service ["INS"], not the State Department, to determine whether the requirements for L status, which are examined in the petition process, have been met. An approved Form I-129, Petition for Nonimmigrant Worker, or evidence that the L petition has been approved (an acceptable Form I-797, Notice of Action , or telegraphic or telephonic notification from INS or the Department) is, in itself, to be considered by consular officers as prima facie evidence that, in the case of an individual petition, the petitioner and foreign national beneficiary meet the requirements for L status.
Consular officers do not have the authority to question the approval of L petitions without specific evidence, unavailable to INS at the time of petition approval, that the requisites of INA 101(a)(15)(L) have not been met. On the other hand, the approval of a petition by INS does not relieve the foreign national of the burden of establishing visa eligibility. If the consular officer has reason to believe, based upon information developed during the visa interview or other evidence which was not available to INS, that the petitioner or beneficiary may not be entitled to status, the consular officer may request any additional evidence which bears a reasonable relationship to this issue. Disagreement with INS interpretation of the law or the facts, however, is not sufficient reason to ask INS to reconsider its approval of the petition.
US Consular Posts are to process with dispatch those cases which appear legitimate, and identify those which require local investigation or referral to the approving INS office for reconsideration. Consular Posts are to refer cases to INS for reconsideration sparingly, to avoid inconveniencing bona fide petitioners and beneficiaries and causing duplication of effort by INS. Consular officers must have specific evidence of either misrepresentation in the petition process or of previously unknown facts, which might alter INS's finding, before requesting review of a Form I-129 approval. When seeking reconsideration, the consular officer is to forward the petition, all pertinent documentation, and a written memorandum of the evidence supporting the request for reconsideration to the approving INS office. A copy of all material is to be retained at the post.
L foreign nationals are specifically excluded from the intending immigrant presumption of section 214(b) of the INA and are furthermore not required to have a residence abroad which they have no intention of abandoning. In addition, INA 214h provides the fact that an foreign national has sought permanent residence in the United States does not preclude him or her from obtaining an L nonimmigrant visa or otherwise obtaining or maintaining that status. The foreign national may legitimately come to the United States as a nonimmigrant under the L classification and depart voluntarily at the end of his or her authorized stay, and, at the same time, lawfully seek to become a permanent resident of the United States. Consequently, the consular officer's evaluation of an applicant's eligibility for an L visa shall not focus on the issue of temporariness of stay or immigrant intent.
The L-1 classification may be appropriate in certain cases where the E visa is unavailable because the trade, nationality, and/or treaty criteria specific to E visas have not been met. L-1 classification may not be granted, however, if the essential requirements which apply to L status are lacking. Such criteria include:
The intended position is executive or managerial in nature, or requires specialized knowledge;
The applicant has the required period of employment with the petitioner abroad; and
There is a qualifying relationship between the business entities involved.
STATUS OF PETITIONER. For the purposes of the L classification, a petitioner is a qualifying organization desiring to bring a foreign national to the United States as an L-1 nonimmigrant. It must be a parent, branch, affiliate, or subsidiary of the same employer for whom the foreign national has been employed abroad prior to entry. The petitioner may be either a U.S. or foreign organization.
DEFINITIONS: "BUSINESS ENTITIES" The Immigration and Naturalization Service uses the following definitions and descriptions of business entities in adjudicating L petitions.
"QUALIFYING ORGANIZATION." A "qualifying organization" means a U.S. or foreign firm, corporation, or other legal entity which:
Meets exactly one of the qualifying relationships specified in the definitions of a parent, branch, affiliate or subsidiary;
Is or will be doing business (engaging in international trade is not required) as an employer in the United States and in at least one other country, directly or through a parent, branch, affiliate, or subsidiary for the duration of the foreign national's stay in the United States as an intracompany transferee; and
Otherwise meets the requirements of INA 101(a)(15)(L).
"PARENT." A "parent" means a firm, corporation, or other legal entity which has subsidiaries. Any business entity which has subsidiaries is a parent. However, a subsidiary may own other subsidiaries and also be a parent, even though it has an ultimate parent.
"BRANCH." A"branch" means an operating division or office of the same organization housed in a different location. Any such office or operating division which is not established as a separate business entity is considered a branch.
"SUBSIDIARY." A "subsidiary" means a firm, corporation, or other legal entity of which a parent owns, directly or indirectly:
More than half of the entity and controls the entity; or
Half of the entity and controls the entity; or
50 percent of a 50-50 joint venture and has equal control and veto power over the entity; or
Less than half of the entity, but in fact controls the entity.
A 50-50 joint venture can be owned and controlled by only two legal entities; all other combinations of a joint venture do not qualify as a subsidiary. A contractual joint venture does not qualify as a subsidiary. A parent may own less than half of the entity but have control because the other stock is widely dispersed among minor stockholders; for example, when an individual or company acquires sufficient shares of a publiclyheld company to be able to nominate and elect the board of directors.
"AFFILIATE." "Affiliate" means:
(1) One of two subsidiaries, both of which are owned and controlled by the same parent or individual; or
(2) One of two legal entities owned and controlled by the same group of individuals, each individual owning and controlling approximately the same share or proportion of each entity; or
(3) In the case of a partnership that is organized in the United States to provide accounting services along with managerial and/or consulting services and that markets its accounting services under an internationally recognized name under an agreement with a worldwide coordinating organization that is owned and controlled by the member accounting firms, a partnership (or similar organization) that is organized outside the United States to provide accounting services shall be considered to be an affiliate of the U.S. partnership if it markets its accounting services under the same internationally recognized name under the agreement with the worldwide coordinating organization of which the U.S. partnership is also a member.
"Subsidiaries" are "affiliates" of each other. The affiliate relationship arises from the common ownership and control of both subsidiaries by the same legal entity. Affiliation also exists between legal entities where an identical group of individuals owns and controls both businesses in basically the same proportions or percentages. Associations between companies based on factors such as ownership of a small amount of stock in another company, exchange of products or services, licensing or franchising agreements, membership on boards of directors, or the formation of consortiums or cartels do not create affiliate relationships between the entities for L purposes.
For L classification purposes, ownership and control are the factors which establish a qualifying relationship between a petitioner and other business entities. Both the U.S. and foreign businesses must be legal entities. In the United States, a business is usually in the form of a corporation, partnership, or proprietorship. "Ownership" means the legal right of possession with full power and authority to control. "Control" means the right and authority to direct the management and operations of the business entity.
EVIDENCE REQUIRED BY INS IN DETERMINING PETITIONER'S STATUS. INS regulations do not ordinarily require submission of extensive evidence of the petitioning organization's corporate structure. In questionable cases, however, INS may seek whatever evidence is deemed necessary, including certified audits, balance sheets, profit and loss statements, noncertified audits (reviews, compilations), annual reports, tax records, etc.
SIZE AND SCOPE OF OPERATION. While the petitioner's size does not limit its use of the intracompany transferee category (except for access to the blanket petition provision), INS regulations do require that the petitioning organization demonstrate its ongoing international nature by continuing to do business in the United States and abroad.
A corporation is a separate legal entity from its owners or stockholders for the purpose of qualifying a foreign national beneficiary as an intracompany transferee under INA 101(a)(15)(L). A corporation may employ and petition for its owners, even a sole owner. See 9 FAM 41.54 N7.6 (TL:VISA-73; 2-5-93)
In order to be classifiable under INA 101(a)(15)(L), the services performed by the foreign national abroad, and those to be performed in the United States, must involve either "managerial capacity", "executive capacity", or "specialized knowledge."
The following definitions are used by INS in evaluating the positions to which L foreign nationals are destined.
"MANAGERIAL CAPACITY." "Managerial capacity" means an assignment within an organization in which the employee primarily:
Manages the organization, or a department, subdivision, function, or component of the organization;
Supervises and controls the work of other supervisory, professional, or managerial employees, or manages an essential function within the organization, or a department or subdivision of the organization;
Has the authority to hire and fire or recommend those as well as other personnel actions (such as promotion and leave authorization) if another employee or other employees are directly supervised. If no other employee is directly supervised, functions at a senior level within the organizational hierarchy or with respect to the function managed; and
Exercises discretion over the day-to-day operations of the activity or function for which the employee has authority. A first line supervisor is not considered to be acting in a managerial capacity merely by virtue of his or her supervisory duties unless the employees supervised are professional.
"EXECUTIVE CAPACITY." "Executive capacity" means an assignment within an organization in which the employee primarily:
Directs the management of the organization or a major component or function of the organization;
Establishes the goals and policies of the organization, component, or function;
Exercises wide latitude in discretionary decisionmaking; and
Receives only general supervision or direction from higher level executives, the board of directors, or stockholders of the organization.
"SPECIALIZED KNOWLEDGE." "Specialized knowledge" means special knowledge possessed by an individual of the petitioning organization's product, service, research, equipment, techniques, management, or other interests and its application in international markets, or an advanced level of knowledge or expertise in the organization's processes and procedures. ("Specialized Knowledge Professional" means an individual who has specialized knowledge as defined above and is a member of the professions as specified in INA 101(a)(32).)
"MANAGERIAL OR EXECUTIVE CAPACITY."
(1.) An executive or managerial capacity requires a high level of authority and a broad range of job responsibilities. Managers and executives plan, organize, direct, and control an organization's major functions and work through other employees to achieve the organization's goals. In determining whether a foreign national supervises others, independent contractors as well as company employees can be considered. The duties of a position must primarily be of an executive or managerial nature, and a majority of the executive's or manager's time must be spent on duties relating to policy or operational management. This does not mean that the executive or manager cannot regularly apply his or her professional expertise to a particular problem. The definitions do not exclude activities that are common to managerial or executive positions such as customer and public relations, lobbying, and contracting.
(2.) An executive or manager may direct a function within an organization. Frequently, however, US officials will decide that individuals who control and directly perform a function within an organization, but do not have subordinate staff, are more appropriately considered specialized knowledge employees.
(3.) If a small or medium sized business supports a position wherein the duties are primarily executive or managerial, it can qualify under the L category. However, neither the title of a position nor ownership of the business are, by themselves, indicators of managerial or executive capacity. The sole employee of a company may qualify as an executive or manager for L visa purposes, provided his or her primary function is to plan, organize, direct and control an organization's major functions through other people.
"SPECIALIZED KNOWLEDGE CAPACITY." To serve in a specialized knowledge capacity, the foreign national's knowledge must be different from or surpass the ordinary or usual knowledge of an employee in the particular field, and must have been gained through significant prior experience with the petitioning organization. A specialized knowledge employee must have an advanced level of expertise in his or her organization's processes and procedures or special knowledge of the organization which is not readily available in the United States labor market. Some characteristics of an employee who has specialized knowledge are that he or she:
Possesses knowledge that is valuable to the employer's competitiveness in the market place;
Is uniquely qualified to contribute to the U.S. employer's knowledge of foreign operating conditions;
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; and
Possesses knowledge which can be gained only through extensive prior experience with the employer.
Petitions to accord L status may be approved for persons with specialized knowledge, but not for persons who are merely skilled workers. Being a "skilled worker" (i.e., one whose skill and knowledge enable one to produce a product through physical or skilled labor) does not in itself qualify a foreign national for the "specialized knowledge" category. Specialized knowledge capability is based on the beneficiary's special knowledge of a business firm's product or service, management operations, decision making process, or similar elements that is not readily available in the U.S. labor market, rather than on his or her level of training or skill.
BENEFICIARY NEED NOT PERFORM SAME WORK IN UNITED STATES AS ABROAD.
To qualify for an L visa, the beneficiary must be assigned to a position in the United States in either the same category (i.e., managerial, executive, or involving specialized knowledge) as the position held abroad, or in one of the other qualifying categories. The beneficiary need not be coming to perform the same work that was performed abroad. Promotions within the qualifying categories are possible (e.g., from specialized knowledge employee to manager).
FULL-TIME SERVICE REQUIRED BUT NOT ENTIRELY IN UNITED STATES.
In general, the intent of the L-1 classification is the intracompany transfer to the United States of full-time executive, management, or specialized knowledge personnel. However, while full-time employment by the beneficiary is anticipated, INA 101(a)(15)(L) does not require that the beneficiary perform full-time services within the United States. An executive of a company with branch offices in Canada and the United States, for example, could divide normal work hours between those offices and still qualify for an L-1 visa. L-1 status does require, however, that a significant portion of the foreign national's time, on a regular and systematic basis, be spent performing managerial, executive, or specialized knowledge activities which are a part of, or directly affect, the day-to-day operations of the United States entity. It must be established that the foreign national will be rendering services to, and be employed by, the entity inside the United States in productive employment. Generally,
activities such as conferring with officials, attending meetings and conferences, and participating in training are not considered productive employment and are appropriate for B-1 classification.
EMPLOYMENT IN UNITED STATES BY FOREIGN COMPANY DIRECTLY NOT QUALIFYING.
A beneficiary who will be employed in the United States directly by a foreign company and who will not be controlled in any way by (and thus, in fact, not have any employment relationship to) the foreign company's office in the United States does not qualify as an intracompany transferee.
"EMPLOYER-EMPLOYEE RELATIONSHIP." The essential element in determining the existence of an "employer-employee" relationship is the right of control, that is, the right of the employer to order and control the employee in the performance of his or her work. Possession of the authority to engage or the authority to discharge is very strong evidence of the existence of an employeremployee relationship.
SOURCE OF REMUNERATION AND BENEFITS NOT CONTROLLING.
The source of the beneficiary's salary and benefits while in the United States (i.e., whether the beneficiary will be paid by the U.S. or foreign affiliate of the petitioning company) is not controlling in determining eligibility for L status. In addition, the employer/employee relationship encompasses a situation in which the beneficiary will not be paid directly by the petitioner, and such a beneficiary is not precluded from establishing eligibility for L classification.
PETITIONER MUST BE DOING BUSINESS IN UNITED STATES AND AT LEAST ONE OTHER COUNTRY.
Criteria for "Doing Business."
A qualifying organization under INA 101(a)(15)(L) must, for the duration of the intracompany transferee's stay in the United States, be doing business (engaging in international trade is not required) as an employer in the United States and in at least one other country. [For employees coming to open or be employed in a new office in the United States, see 9 FAM 41.54 N12 below]. Company representatives and liaison offices which provide services in the United States, even if the services are to a company outside the United States, are included in the "doing business" definition and foreign nationals who perform such services may qualify for L-1 status.
Definition: "Doing Business."
"Doing business" means the regular, systematic, and continuous provision of goods and/or services by a qualifying organization and does not include the mere presence of an agent or office of the qualifying organization in the United States and abroad.
ORGANIZATION MUST DEMONSTRATE ONGOING INTERNATIONAL NATURE..
INS regulations require a qualifying organization to demonstrate its ongoing international nature. The L classification was not created for self-employed persons to enter the United States to continue self-employment (unless they are otherwise qualified for L status), nor was the L classification intended to accommodate the complete relocation of foreign businesses to the United States.
QUALIFYING EXPERIENCE.
INA 101(a)(15)(L) requires the beneficiary of an intracompany transferee petition to have been employed continuously by the petitioner, or by an affiliate or subsidiary thereof, for one year within the three years preceding the beneficiary's application for admission into the United States. While not expressly stated in the INA or regulations, INA 101(a)(15)(L) contemplates that the beneficiary's qualifying experience with the petitioner must have been continuous full-time employment, and not continuous part-time employment. Several years of part-time employment equaling one year in aggregate cannot be viewed as meeting the requirement. Full-time services divided among affiliated companies, each using the employee on a part-time basis, however, constitute full-time employment if the aggregate time meets or exceeds the hours of a full-time position.
REQUIRING PRIOR CONTINUOUS ONE YEAR EMPLOYMENT ABROAD.
The beneficiary's one year of qualifying experience with the petitioner must be wholly outside the United States. Time spent working for the petitioning firm in the United States does not qualify. Periods spent in the United States in any authorized capacity on behalf of the foreign employer or a parent, branch, affiliate, or subsidiary thereof, and brief trips to the United States for business or pleasure, do not "interrupt" the continuity of the one year of continuous employment abroad for L-1 status, but do not count toward fulfillment of that requirement. Such periods spent in the United States may follow the year of employment abroad and immediately precede application for L-1 status, so long as the required one year of qualifying employment during the past three years has been served abroad.
"OPENING OF NEW OFFICE."
"New office" means an organization which has been doing business in the United States through a parent, branch, affiliate, or subsidiary for less than one year. INA 101(a)(15)(L) does not require the beneficiary of an L petition to be coming for employment at a preexisting, U.S. based office of the employer. A petition may be approved for a beneficiary who is coming to establish an office (i.e., commence business) in the United States for the petitioner. A foreign national in a managerial, executive, or specialized knowledge capacity may come to open or be employed in a "new office." A petitioner who seeks L status for a manager or executive coming to open or to be employed in a new office must submit evidence:
That sufficient physical premises to house the new office have been secured;
That the beneficiary was employed for one continuous year in the three-year period preceding the filing of the petition in an executive or managerial capacity and that the proposed employment involves executive or managerial authority over the new operation; and
That the intended U.S. operation, within one year of approval of the petition, will support an executive or managerial position.
While it is expected that a manager or executive in a new office will be more than normally involved in day-to-day operations during the initial phases of the business, he or she must also have authority and plans to hire staff and have wide latitude in making decisions about the goals and management of the organization. A petitioner seeking the entry of a foreign national with specialized knowledge to open or be employed in a new office must demonstrate that:
Sufficient physical premises to house the new office have been secured;
The business entity in the United States is or will be a qualifying organization as described in 9 FAM 41.54 N7.1-1 and
The petitioner has the financial ability to remunerate the beneficiary and to commence doing business in the United States.
PETITION VALIDITY FOR EMPLOYEES OF "NEW OFFICES" LIMITED TO ONE YEAR.
A petition for a qualified employee of a "new office" will be approved for a period not to exceed one year, after which the petitioner must demonstrate that it is "doing business," see above, in order for the petition and foreign national's stay to be extended beyond one year.
PETITION PROCEDURES.
An employer must file Form I-129, Petition for Nonimmigrant Worker, with INS to accord status as an intracompany transferee. Form I-129 is also used to request extensions of petition validity and extensions of stay in L status. The form must be filed with the INS Service Center which has jurisdiction over the area where the foreign national will perform services. Approved individual L petitions, except those involving "new offices," are initially valid for the period of established need for the beneficiary's services, not to exceed three years. If the beneficiary is coming to the United States to open or be employed in a new office, the petition may be approved for a period not to exceed one year. To extend the validity of an individual L petition, the petitioner must file Form I-129 with the jurisdictional INS Regional Service Center. Supporting documentation is not required except in petitions involving new offices, in which case the petitioner must demonstrate that it is doing business, as described above, in order to extend the petition to indefinite validity. A petition extension may be filed only if the validity of the original petition has not expired. Extensions of stay may be authorized in increments of up to two years. The beneficiary must be physically present in the United States at the time the extension of stay petition is filed. If the foreign national is required to leave the United States for business or personal reasons while the extension requests are pending, the petitioner may ask INS to cable notification of the petition extension to the consular office abroad where the foreign national will apply for a visa. When the maximum allowable period of stay in L classification has been reached, see below, no further extensions may be granted.
LIMITATIONS ON TOTAL PERIODS OF STAY.
The total period of stay for L foreign nationals employed in a specialized knowledge capacity may not exceed five years. The maximum allowable period of stay for a foreign national employed in a managerial or executive capacity may not exceed seven years. No further extensions may be granted once these limits have been reached.
When a foreign national was initially admitted in a specialized knowledge capacity and is later promoted to a managerial or executive position, he or she must have been employed in the managerial or executive position for at least six months in order to be eligible for the total period of stay of seven years. The change to managerial or executive capacity must have been approved by INS in an amended, new, or extended petition at the time that the change occurred. When an nonimmigrant has spent the maximum allowable period of stay in the United States in L, (and/or H status), the foreign national may not be issued a visa or be readmitted to the United States under the L or H visa classification, nor may a new petition, extension, or change of status be approved for that foreign national under INA 101(a)(15)(L) or (H), unless the foreign national has resided and been physically present outside the United States for the immediate past year. Brief trips to the United States for business or pleasure do not interrupt the one year period abroad, but do not count towards fulfillment of that requirement. Periods when the foreign national fails to maintain status shall be counted towards the applicable limitation; a foreign national may not circumvent the limit by violating his or her status.
SPOUSE AND CHILDREN OF L-1 FOREIGN NATIONALS - DERIVATIVE CLASSIFICATION.
The spouse and children of an L-1 nonimmigrant who are accompanying or following to join the principal foreign national in the United States are entitled to L-2 classification and are subject to the same visa validity, period of admission, and limitation of stay as the L-1 foreign national. (A Canadian citizen spouse or child who is accompanying or following to join a Canadian citizen in L-1 status shall be admitted as an L-2 nonimmigrant without requiring a visa. A non-Canadian citizen spouse or child must have an L-2 visa when applying for admission.)
VERIFYING PRINCIPAL FOREIGN NATIONAL IS MAINTAINING STATUS.
When a foreign national applies for an L-2 visa to follow to join a principal foreign national already in the United States, the consular officer should be satisfied that the principal foreign national is maintaining L-1 status before issuing the visa. If the consular officer has doubt about the principal foreign national's status and if there are no other readily available means of verification, the consular officer may suggest that the L-1 foreign national in the United States obtain Form I-797 from INS and forward it to the applicant for presentation to the consular officer.
EMPLOYMENT IN UNITED STATES BY L-2 DEPENDENT FOREIGN NATIONALS PROHIBITED - STUDY ALLOWED.
Foreign nationals in L-2 status are not authorized to accept employment. The spouse and children of L-1 nonimmigrants may not accept employment, unless they qualify independently for a classification in which employment is, or can be, authorized. L-2 foreign nationals are permitted to study during their stay in the United States.
For a total of $3,500 in attorney's fees, which excludes all costs and filing fees, the ALL AMERICAN IMMIGRATION SERVICE can prepare and file the initial application, Form I-129, to request L-1 status in the United States. The $3,500 price-tag does not include your spouse or children, or subsequent "green card" processing.The $3,500 does not include any translation costs, business plan, incorporation, licensing, professional copying costs, or mailing/delivery costs, etc.
Here is a link to my own personal "wish list" of requested documents. This article is general and is not intended to substitute for professional advice in specific situations.
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