L-1 Visa – The Intracompany Transferee Visa

The L-1A visa category is meant to facilitate the transfer of key executive, managers, and persons possessing “specialized knowledge” from operations outside the U.S. to new or existing operations in the U.S. The visa applicant must have worked full time in one of these Immigration defined roles (manager, executive or with specialized knowledge) for the foreign operations for at least twelve cumulative months within the last thirty-six months. Time spent in the U.S. will not interrupt the one-year requirement but will not be counted toward the fulfillment of this period. The visa applicant must be entering to assume one of these defined roles in the U.S., as well. The entry of employees with specialized knowledge is limited to transfers to existing US operations, while a “manager” or “executive” can enter to open a US office. It is possible that the majority owner of the companies is also the “manager” or “executive” asking for the visa. If so, we must be able to prove that the owner has been actively serving as a manager or executive with the foreign company for at least 12 months in the last 36 months. A mere owner of a company who is not actively involved in the day-to-day management does not thus serve in an executive or managerial capacity in the organizational structure and would not technically be eligible for an L-1 visa, while the executive/manager actively involved in the day-to-day management who may or may not draw a salary as an employee should be eligible for an L-1 visa. If not on the payroll as an employee it will be important to show the capacity of employment registered with local governing authorities if possible. It is presumed that someone or some entity controls both, or one controls the other operations to qualify as “multinational” for L-1A purposes. Variations in ownership structures may qualify, but once the ownership is defined I can advise whether the L-1A regulations have been met. It is possible to obtain an L-1A visa to open a new office in the U.S. with very little investment. “New offices” require confirmation of the foreign operations, registration or incorporation in the U.S. for the new entity, a lease for premises to operate, and the commitment of funding for the US operations to carry out the defined plans. A “new office” L-1A can be approved for one year, while a transfer to an existing operation can be approved for an initial period of three years. The key to an extension after one year or the initial three year approval is being able to also define the duties of the Transferee as “executive” or “managerial” through the supervision of others. Therefore, the L-1A may be easy to obtain to open up the US offices, but you must prove the development of business and the hiring of others to do the day to day business of the company in order to extend thereafter. It is important to point out that the L-1A is for “multinational” companies requiring the existence of foreign operations doing business and remaining “affiliated” throughout the entire L visa period. The closing of the affiliated office the Transferee came from will not affect extensions as long as there remains some other “affiliated” business outside the U.S. that the worker could transfer to in the future. It would take Permanent Residence to be able to close or sell all foreign affiliated operations. The L-1A visa process requires the filing of a Petition with the US Citizenship and Immigration Services office in the U.S. establishing all requirements for approval prior to presenting yourself at a US Embassy or Consulate abroad to obtain the visa to enter for employment purposes. NOTE: this article is provided by Gianni Toniutti, Esq., Partner of Tosolini, Lamura, Rasile & Toniutti LLP. This article and any of its content are property of Tosolini, Lamura, Rasile & Toniutti LLP and cannot be reproduced, disclosed to third party, or otherwise used without the consent of Tosolini, Lamura, Rasile & Toniutti LLP. This article is offered only for general informational purposes and does not constitute legal advice. No attorney-client relationship is created by this article. No warranties are made with respect to this article. The information provided above may not apply to your specific situation; thus, please consult an attorney with specific information about your case.

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