L-1B Visas for Specialized Knowledge Multinational Transfer Workers

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.

General Qualifications of the Employer and Employee

To qualify for L-1 classification in this category, the employer must:

• Have a qualifying relationship with a foreign company (parent company, branch, subsidiary, or affiliate, collectively referred to as qualifying organizations); and
  
  
• Currently be, or will be, doing business as an employer in the United States and in at least one other country directly or through a qualifying organization for the duration of the beneficiary’s stay in the United States as an L-1. While the business must be viable, there is no requirement that it be engaged in international trade.

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:

• Generally have been working in a qualifying capacity, for a qualifying organization abroad, for at least one continuous year within the three years immediately preceding the filing date of the sponsoring U.S. employer’s petition on his behalf; and
  
  
• Be seeking to enter the United States to provide services in a specialized knowledge capacity to a branch of the same employer or one of its qualifying organizations (e.g. a subsidiary, a parent company, or an affiliate).

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.

L-1 Visa Reform Act of 2004

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:

• The employee will not be principally controlled or supervised by such an unaffiliated employer; and
• The work being provided by the employee is not considered to be labor for hire by such an unaffiliated employer.

Additional Requirements for L-1 Petitions for New Offices

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:

• The employer has secured sufficient physical premises to house the new office ; and
• The employer has the financial ability to compensate the employee and begin doing business in the United States.

Period of Stay in L-1B Status

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.

Family of L-1B Workers

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.