L-1 Nonimmigrant Visa for Intercompany Transferees

The L-1 intercompany transferee nonimmigrant classification is a useful vehicle for multinational companies seeking to transfer high-level managers, executives and employees with specialized knowledge from overseas to provide services in a similar capacity in the United States. There are two sub-categories under the L-1 nonimmigrant visa: (1) L-1A for multinational executives and managers, and (2) L-1B for employees with specialized knowledge.

The basic requirements for both sub-categories of the L-1 nonimmigrant visa are as follows:

1. You must have worked abroad for an overseas company for a continuous period of one year in the preceding three years, before you can be transferred to the related United States company. Any time spent in the United State during the statutorily-required year cannot be counted toward fulfilling the one-year abroad requirement. In addition, you must have been employed directly by the overseas company—i.e., an independent contractor who performed services for a foreign affiliate would not satisfy the one-year employment abroad requirement. The employment abroad must have been full-time. The only possible exception to the full-time requirement would be if you worked part-time for several affiliates of the same foreign company and the total working time would equal full-time employment with the foreign company. One possible concern regarding this first requirement, especially given your 50% ownership of _________________, is that an “owner” cannot be considered an “employee” for L-1 visa purposes if there is no differentiation between the owner and the employing entity—i.e., you would have to be an employee rather than a partner in _________________ in order to be eligible for an L-1 nonimmigrant visa.

2. The company abroad for which you have worked for one year must be the same employer or a subsidiary or affiliate of the United State company to which you would be transferring. The required relation between the foreign and the United States company would exist if: (a) the United States entity and the company abroad are branch offices of the same corporation; (b) the United States company owns more that 50% of the overseas company; (c) the overseas company owns more than 50% of the United States company; (d) the United States company and the overseas company are both majority-owned (more than 50%) by a third company or by the same individual or group of individuals; or (e) the United States company is a joint venture (50%-owned by each of two companies) or the United States company is one of the joint venturers (50% owner) of the foreign company from which you would transfer. Finally, the transferring company must continue to do business abroad during the entire period of your stay in the United States as an L-1 transferee.

3. You must have been employed abroad in an “executive” or “managerial” position or in a position involving “specialized knowledge.” You would have worked abroad in an “executive” position if your primary duties involved: (a) the direct management of an organization or a major component of an organization or a function in the organization; (b) the establishment of organization goals and policies; and (c) the exercise of wide-latitude discretionary decision-making. You would have worked abroad in a “managerial” position if your primary duties involved: (a) the direction of the organization, a customarily recognized department or sub-division of the organization, or a function of the organization; (b) control over the work of other professional, supervisory, or managerial employees; (c) the authority to fire/hire employees or recommend such actions; and (d) the exercise of discretionary authority over day-to-day operations. Finally, you would have worked abroad in a position involving “specialized knowledge” if you have a special knowledge of the company product and its application in the international marker or, if you have an advanced level of knowledge of the company’s processes and procedures.

4. You must be coming to the United States to work in an “executive,” “managerial” or “specialized knowledge” capacity.

5. You must be qualified for the position by virtue of your prior education and experience.

6. You must intend to depart the United States upon completion of your authorized stay (plus extensions), but may also pursue lawful permanent resident status at the same time.

Under the L-1 nonimmigrant visa category, you may be admitted to the United States for the period of time required by your employer, up to a maximum initial period of three years. Extensions are available for both sub-categories, but your maximum stay may not exceed seven years under the L-1A category or five years under the L-1B category. Be aware, however, that if you were to stay for the maximum period allowed, you would be barred from re-entering the United States in either L or H status until you have resided abroad for a full year.

Finally, under the L-1 nonimmigrant visa, your family members—i.e., your spouse and unmarried children under 21 years of age—would be entitled to admission into the United States under the L-2 nonimmigrant visa category. L-2 spouses may obtain an EAD for a period not to exceed two years. L-2 children are not eligible for EAD. L-2 family members can undertake course of study in the United States. Please be aware that once a child attains the age of 21 or gets married, he or she will no longer be eligible to remain in the United States under L-2 status.