L-1 Employee Transfer Visa
How Do I Get a Visa to Transfer an Employee from a Branch of Our Company Outside of the United States to Our Location in Minnesota?
A Minnesota Immigration Lawyer can help you acquire an L work visa for this situation.
L-1 Visa
The immigration law contains provisions that U.S. companies can use to transfer managers, executives, and specialized knowledge personal from a location abroad to the United States. The visa is called an L-1 and is used for intracompany transfers.
The central criteria is that the employee must have been employed abroad for at least one of the preceding three years. The employee must have been employed by a parent, branch, affiliate, or subsidiary of the employer in a managerial or executive capacity, or in a position requiring specialized knowledge.
What is the definition of an intracompany transferee?
The immigration law defines an intracompany transferee as, “alien 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 or 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.”
Managerial capacity means an assignment within an organization in which the employee primarily:
1) Manages the organization, or a department, subdivision, function, or component of the organization;
2) 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;
3) 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
4) 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 the supervisor's supervisory duties unless the employees supervised are professional.
Executive capacity means an assignment within an organization in which the employee primarily:
1) Directs the management of the organization or a major component or function of the organization;
2) Establishes the goals and policies of the organization, component, or function;
3) Exercises wide latitude in discretionary decision-making; and
4) Receives only general supervision or direction from higher level executives, the board of directors, or stockholders of the organization.
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.
Qualifying organization means a United States or foreign firm, corporation, or other legal entity which:
1) Meets exactly one of the qualifying relationships specified in the definitions of a parent, branch, affiliate or subsidiary.
2) 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 alien's stay in the United States as an intracompany transferee.
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.
Parent means a firm, corporation, or other legal entity which has subsidiaries.
Branch means an operating division or office of the same organization housed in a different location.
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 owns, directly or indirectly, half of the entity and controls the entity; or owns, directly or indirectly, 50 percent of a 50-50 joint venture and has equal control and veto power over the entity; or owns, directly or indirectly, less than half of the entity, but in fact controls the entity.
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 United States partnership if it markets its accounting services under the same internationally recognized name under the agreement with the worldwide coordinating organization of which the United States partnership is also a member.
Opening a New Office—If the petition indicates that the beneficiary is coming to the United States as a manager or executive to open or to be employed in a new office in the United States, the petitioner shall submit evidence that:
A) Sufficient physical premises to house the new office have been secured;
B) The beneficiary has been 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 involved executive or managerial authority over the new operation; and
C) The intended United States operation, within one year of the approval of the petition, will support an executive or managerial position supported by information regarding:
1) The proposed nature of the office describing the scope of the entity, its organizational structure, and its financial goals;
2) The size of the United States investment and the financial ability of the foreign entity to remunerate the beneficiary and to commence doing business in the United States; and
3) The organizational structure of the foreign entity.
Blanket petitions. A petitioner which meets the following requirements may file a blanket petition seeking continuing approval of itself and some or all of its parent, branches, subsidiaries, and affiliates as qualifying organizations if:
A) The petitioner and each of those entities are engaged in commercial trade or services;
B) The petitioner has an office in the United States that has been doing business for one year or more;
C) The petitioner has three or more domestic and foreign branches, subsidiaries, or affiliates; and
D) The petitioner and the other qualifying organizations have obtained approval of petitions for at least ten "L" managers, executives, or specialized knowledge professionals during the previous 12 months; or have U.S. subsidiaries or affiliates with combined annual sales of at least $25 million; or have a United States work force of at least 1,000 employees.
When applying for a blanket petition, the petitioner shall include in the blanket petition all of its branches, subsidiaries, and affiliates which plan to seek to transfer aliens to the United States under the blanket petition. An individual petition may be filed by the petitioner or organizations in lieu of using the blanket petition procedure. However, the petitioner and other qualifying organizations may not seek L classification for the same alien under both procedures, unless a consular officer first denies eligibility. Whenever a petitioner which has blanket L approval files an individual petition to seek L classification for a manager, executive, or specialized knowledge professional, the petitioner shall advise USCIS that it has blanket L approval and certify that the beneficiary has not and will not apply to a consular officer for L classification under the approved blanket petition.
Spouse and dependents. The spouse and unmarried minor children of the beneficiary are entitled to L nonimmigrant classification, subject to the same period of admission and limits as the beneficiary, if the spouse and unmarried minor children are accompanying or following to join the beneficiary in the United States. Neither the spouse nor any child may accept employment unless he or she has been granted employment authorization.
L-1 limitation on period of stay.
An alien who has spent five years in the United States in a specialized knowledge capacity or seven years in the United States in a managerial or executive capacity may not be readmitted to the United States unless the alien has resided and been physically present outside the United States, except for brief visits for business or pleasure, for the immediate prior year. Such visits do not interrupt the one year abroad, but do not count towards fulfillment of that requirement.
Extension of stay.
An extension of stay may be authorized in increments of up to two years for beneficiaries of individual and blanket petitions. The total period of stay may not exceed five years for aliens employed in a specialized knowledge capacity. The total period of stay for an alien employed in a managerial or executive capacity may not exceed seven years. No further extensions may be granted. When an alien was initially admitted to the United States 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 to be eligible for the total period of stay of seven years. The change to managerial or executive capacity must have been approved by USCIS in an amended, new, or extended petition at the time that the change occurred.
For more information on L visas, please contact Vincent Martin at vmartin@cundyandmartin.com or call (952) 746-4111.
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