WHAT KIND OF PERSONNEL QUALIFY FOR TRANSFER TO THE UNITED STATES UNDER THE L-1 CATEGORY?

There are two kinds of L-1 employees that may be transferred to the United States from a qualifying organization abroad: L-1A "managers/executives"; and L-1B "specialized knowledge" personnel.

WHO IS AN L-1A MANAGER UNDER IMMIGRATION SERVICE REGULATIONS?

A person who:

• manages an organization, department subdivision, function or component of an organization;
• supervises the work of other supervisory, professional, or managerial employees;
• has the authority to hire, fire or recommend personnel actions over those he/she supervises while acting within a senior level of an organizational hierarchy; and
• has discretion over day to day operations of an activity or function for which the employee has authority.

WHO IS AN L-1A EXECUTIVE UNDER IMMIGRATION SERVICE REGULATIONS?

A person who:

• directs the management of an organization or who directs a major component or function of the organization;
• establishes the goals and policies of the organization, component and/or function.
• exercises wide latitude in discretionary decision making within the organization.
• receives only general direction from higher level executives, board of directors or stockholders of an organization.

WHO IS AN L-1B SPECIALIZED KNOWLEDGE EMPLOYEE UNDER IMMIGRATION SERVICE REGULATIONS?

An employee is a specialized knowledge worker if he/she possesses unique information about the petitioning company's products, services, research, equipment, techniques, management, or proprietary processes and procedures.

HOW LONG MUST A PERSON BE AN EMPLOYEE AT A QUALIFYING ENTITY OVERSEAS BEFORE BEING ELIGIBLE FOR L-1 STATUS?

A person must be employed full-time at the overseas entity for at least one year in the three years before the filing of the petition or before the person's last entry into the United States whichever is earlier. The employment, need not, however, be consecutive but must amount to at least 365 days in the three year window before filing.

MAY A PERSON WHO WORKS ABROAD FOR THE REQUISITE YEAR AT A QUALIFYING ORGANIZATION IN SPECIALIZED KNOWLEDGE STATUS QUALIFY FOR L-1A MANAGERIAL STATUS IN THE UNITED STATES?

Yes.

MAY A PERSON WHO WORKS ABROAD FOR THE REQUISITE YEAR AT A QUALIFYING ORGANIZATION IN MANAGERIAL/EXECUTIVE STATUS QUALIFY FOR L-1B SPECIALIZED KNOWLEDGE STATUS IN THE UNITED STATES?

Yes. The position being offered at the United States entity defines which category is appropriate for the transferee.

WHAT ARE THE MAXIMUM PERIODS OF STAY FOR L-1A AND L-1B NONIMMIGRANTS?

L-1A transferees are entitled to an initial period of stay of up to three years and two subsequent two-year extensions for a total period of up to seven years of physical presence in the United States. L-1B transferees are entitled to an initial three-year period of stay and one two-year extension for a total period of up to five years of physical presence in the United States.

CAN A PERSON SWITCH FROM L-1B to L-1A CLASSIFICATION WHILE IN THE UNITED STATES?

Yes. But there are special rules regarding a change in classification from L-1B to L-1A. Please contact our office to learn more about this strategy.

WHICH COMPANIES ARE QUALIFIED ORGANIZATIONS? ARE ALL SUBSIDIARIES, PARENTS, AFFILIATES, BRANCHES AND JOINT VENTURES QUALIFYING ORGANIZATIONS?

As a general rule, if the company abroad and the company to which the alien is being transferred in the United States have a common, at least 50% parent, they are "qualifying organizations". Companies that do not meet this 50% requirement may still qualify as "qualifying organizations" if the two companies can prove that there is "common control" over the two entities through voting rights, veto powers, powers of appoint of executive officers etc.

CAN A NEW UNITED STATES QUALIFYING ORGANIZATION RECEIVE L-1 TRANSFEREES?

A new business entity that is a "qualifying organization" may employ L-1 personnel but if the business has been established for less than one year, the immigration service may grant petitions for a limited probationary period of up to one year.