The L-1A nonimmigrant classification enables a U.S. employer to transfer an executive or manager from one of its foreign offices which has an appropriate qualifying relationship (parent, subsidiary, affiliate, or branch office) to one of its offices in the United States.
This classification also enables a foreign company which does not yet have a U.S. office with an appropriate qualifying relationship to send an executive or manager to the United States with the purpose of establishing one. The employer must file a Form I-129, Petition for a Nonimmigrant Worker with the USCIS, with a filing fee, on behalf of the foreign national employee who is being sponsored by the employer for an L-1A visa.
Following is a summary of the features and requirements of the L-1 nonimmigrant visa program.
To qualify for L-1 classification in this category, the employer must:
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.
To qualify, the named employee must also:
Executive capacity generally refers to the employee’s ability to make decisions of wide latitude without much oversight.
Managerial capacity generally refers to the ability of the employee to supervise and control the work of professional employees and to manage the organization, or a department, subdivision, function, or component of the organization. It may also refer to the employee’s ability to manage an essential function of the organization at a high level, without direct supervision of other persons. These types of managers are often referred to as “functional managers.”
L-1A petitions filed on behalf of functional managers should be carefully documented with supporting evidence regarding the managerial nature of the employee’s duties, as these types of petitions are often subject to being challenged by the USCIS, which can issue either an RFE (Request for Evidence) or an NOID (Notice of Intent to Deny) in response to such petitions.
For foreign employers seeking to send an employee to the United States as an executive or manager to establish a new office, the employer must also show that:
Qualified employees with L-1A visas entering the United States to establish a new office will be allowed a maximum initial period of stay of one year. All other qualified L-1A employees will be allowed a maximum initial stay of three years in L-1A status.
For all L-1A employees, requests for extension of stay may be applied for by the employer, who files an I-129 Nonimmigrant Petition for an extension of L-1A status with the USCIS on behalf of its executive or managerial employer with the USCIS. The extensions of status may be granted by the USCIS in increments of up to an additional two years, until the employee has reached the maximum limit of seven years.
The transferring employee may be accompanied or followed by his or her spouse and unmarried children who are under 21 years of age. Such family members may seek admission in the L-2 nonimmigrant classification and, if approved, generally will be granted the same period of stay as the employee.
L-2 spouses are eligible to apply for employment authorization in the United States by filing a Form I-765 Application for Employment Authorization with the USCIS. Upon approving the application, the USCIS will issue an Employment Authorization Document card (commonly referred to as an “EAD” card) to the L-2 spouse. Children in L-2 status may not be employed in the United States.
At the time that the employer files an I-129 Petition with the USCIS to request an extension of the employee’s L-1A status, the spouse and children should file an I-539 Application for an Extension of their L-2 status, included together with the I-129 Petition. Furthermore, the L-2 spouse may also file an I-765 Application for Employer Authorization at this time, as part of the same package submitted to the USCIS, in order to apply for a new EAD card to replace the EAD card that will be expiring.
Please contact us for additional information on the criteria for U.S. visas for multinational executives or managers and how an immigration attorney can help you with the process.
© 2020 Law Office of Michael McVicker