The L1-B nonimmigrant classification enables a U.S. employer to transfer a professional employee with specialized knowledge relating to the organization's interests from one of its affiliated foreign offices to one of its offices in the United States.
This classification also enables a foreign company which does not yet have an affiliated office in the United States to send a specialized knowledge employee to the U.S. to help establish one. The employer must file 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-1B visa.
A summary of the features and requirements of the L-1 nonimmigrant visa program is as follows.
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:
Specialized knowledge means either 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.
L-1B petitions filed on behalf of specialized knowledge workers should be carefully documented with supporting evidence regarding the nature of the employee’s specialized knowledge, 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.
The L-1 Visa Reform Act of 2004 applies to all petitions filed on or after June 6, 2005, and is directed particularly to those petitions filed on behalf of L-1B employees who will be stationed primarily at the worksite of an of an employer other than the petitioning employer or its affiliate, subsidiary, or parent. In order for the employee to qualify for L-1B classification in this situation, the petitioning employer must show that:
For foreign employers seeking to send an employee with specialized knowledge to the United States to be employed in a qualifying new office, the employer must show that:
Qualified employees with an L-1B visa entering the United States to help establish a new office will be allowed a maximum initial stay of one year. All other qualified employees will be allowed a maximum initial stay of three years. For all L-1B employees, requests for extension of stay may be granted in increments of up to an additional two years, until the employee has reached the maximum limit of five 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 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. If approved, there is no specific restriction on where the L-2 spouse may work. 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-1B 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 specialized knowledge workers and how an immigration attorney can help you with the process.
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