Cohen Brosh Law Offices
The L Visa
The L Visa
Obtaining the L Visa
One of the most popular work visas to the United States is the L visa. The L visa is exclusively for foreign companies which have US affiliates or branches. The company can then transfer one of its foreign employees to work temporarily in the US. There are numerous stipulations to obtain this visa, which will be covered in this article.
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The US Congress established the L visa in 1970. Its goal was to encourage multinational companies to invest in the US economy. Unlike some work visas there is no annual limitation on the number issued by the United States Citizenship and Immigration Service (USCIS). In 2019 there were approximately 77,000 such visas issued.
Multinational companies from all over the world transfer their employees to the US via the L visa. The leading country for employee transfers is India, followed by the UK, Brazil and China. See the chart below showing the origins of most L transfer employees.
Qualifications for an L visa
For an employee to be eligible for an L visa, the employee must have worked for the foreign employer for one continuous year out of the preceding three years. Additionally, the US company must have a direct connection to the foreign company. In other words, it must be a subsidiary, parent or affiliate of the foreign company.
There are two types of L visas, L-1A and L-1B. L-1A visas are for executives and managers of the foreign company, which is transferring the person to a similar position in the US. L-1B visas are for those with specialized knowledge. Both visas are very specifically defined by government regulations. For executives, the following is the federal regulation:
8 CFR 214.2(l)(1)(ii)(C)
EXECUTIVE CAPACITY means an assignment within an organization in which the employee primarily:
(1) Directs the management of the organization or a major component or function of the organization.
(2) Establishes the goals and policies of the organization, component, or function.
(3) Exercises wide latitude in discretionary decision-making.
(4) Receives only general supervision or direction from higher-level executives, the board of directors, or stockholders of the organization.
Examples of typical executives who are approved for L-1A visas are CEOs, COOs, CFOs and CTOs.
For managers, the following is the federal regulation:
8 CFR 214.2(l)(1)(ii)(B) states
MANAGERIAL CAPACITY means an assignment within an organization in which the employee primarily:
(1) Manages the organization, or a department, subdivision, function, or component of the organization.
(2) Supervises and controls the work of other supervisory, professional, or managerial employees, or manages an essential function within the organization, or a department or subdivision of the organization.
(3) Has the authority to hire and fire or recommend those as well as other personnel actions (such as promotion and leave authorization) if another employee or other employees are directly supervised, or, if no other employee is directly supervised, functions at a senior level within the organizational hierarchy or with respect to the function managed.
(4) Exercises discretion over the day-to-day operations of the activity or function for which the employee has authority. A first-line supervisor is not considered to be acting in a managerial capacity merely by virtue of the supervisor’s supervisory duties unless the employees supervised are professional.
For both executives and managers respectively, the employee must meet all the criteria listed above with the foreign employer and prospectively with the US employer.
For those employees qualifying for an L-1B visa, they must meet the definition of having specialized knowledge. The following is the government regulation:
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 (See 8 CFR 214.2(l)(1)(ii)(D)).
This regulation was further defined by a memorandum of USCIS in 2015: the foreign national needs to meet one of these standards:
- special knowledge, which is knowledge of the petitioning organization’s product, service, research, equipment, techniques, management, or other interests and its application in international markets that is distinct or uncommon in comparison to that generally found in the particular industry; or
- advanced knowledge, which is knowledge of or expertise in the petitioning organization’s specific processes and procedures that is not commonly found in the relevant industry and is greatly developed or further along in progress, complexity and understanding than that generally found within the employer.
As can be seen, the definitions of executives, managers and employees with specialized knowledge are very specific. The challenge in every L visa petition is to show the transferring employee meets one of the above categories.
Filing the L Visa Petition
The L visa is an employer-based visa, meaning the US employer must file the petition. Form I-129 is filed by the employer with an L visa supplement. But documentation is the key to success for L visa petitions. The following things must be included in an L visa petition:
From the U.S. Company
- Article of incorporation or association
- Application for EIN (Form SS-4)
- Stock certificates
- Lease of business location
- Bank statement or wire transfer evidencing initial investment
- Audited accounting reports (balance sheets, profit/loss statements, cash flow reports)
- Corporate income tax return Form 1120 (if any)
- Employer’s Quarterly Report Form 941 (if any)
- Description of company business
- Commercial contracts, invoices, bills of lading, letters of credit, etc.
- Bank statements for 1 year.
- Company letterhead (several sheets)
- Company structure, plan of employing new employees, including detailed organizational chart, showing names, titles, duties, salaries and education.
- Pictures of the main office (interior and exterior)
- Detailed letter of offer for the employee being transferred
- If a new company, then a business plan for the next five years.
- Employee W-2 forms.
From the Foreign Company
- Business license
- Article of incorporation
- Income tax filings for the past three years
- Audited accounting reports (balance sheets, profit/loss statements, cash flow reports)
- Organizational chart, total number of employees, titles, duties, salaries, education levels and position held by the transferee
- Company brochure or product introduction
- Documents of business transactions (contracts, bills of lading, letters of credit)
- Bank statements, or transactional records for 1 year.
- Company letterhead with company logo, name, and address (several sheets)
- Pictures of company’s main office, factories, or buildings (Disregard if already included in company brochure)
- Business plan for the US office, projected for 5 years, if a new office.
- Detailed letter from employer explaining duties of employee and length of employment with employer.
From the Employee
- Employment verification letter from the foreign company, detailing exactly what the employee has been doing.
- Board resolution or appointment documents verifying the transfer
- Any other documents showing transferee’s capability to conduct business in the technical position.
- One year of pay slips from employee
The two most important issues facing an L visa petition is 1) showing the legal connection between the foreign company and the US company, and 2) showing that the employee meets the definitions of executive, manager or a person with specialized knowledge. With respect to the company connections, if the US company is a corporation, then a stock certificate and other evidence of ownership must be provided showing the direct connection between the US company and the foreign company.
For example, Company A is a US fully owned subsidiary of Company B, a foreign company. Evidence must be provided showing the ownership of Company A by Company B. Examples can be a Board Resolution from Company A describing the issuance of stock to Company B, a stock certificate showing the issued shares of Company A are held by Company B and a US corporate tax return from Company A, which includes a tax schedule that shows that Company A is owned by Company B.
With respect to showing the employee meets the definition of executive, manager or a person of specialized knowledge, the most important evidence is extensive letters from both the foreign company and the US company about the employee and the position to be filled in the US company. The letter from the foreign company must describe in significant detail all the things that the employee does. If the employee is an executive or manager, the letter must show how the employee oversees divisions of the company, how many employees he supervises, the positions of the supervised employees with their education, duties and salaries. If the employee is a person of specialized knowledge, the letter must show with accompanying documentation how the employee’s work is unique, assists the company’s financial standing, the training and education that is required for the position and how the employee meets those standards.
The letter from the US employer must describe what the employee will be doing, the number of employees or divisions the employee will oversee if the employee is an executive or manager, or in the case of a person with specialized knowledge, how his specialized knowledge will help build the company’s bottom line in the US. In addition, very extensive organizational charts must be provided from both the foreign and the US company. In each case, the chart must show the employee’s supervisors and subordinates. Supervisor and subordinate positions, duties, education and salary must be provided.
In addition to the letters, extensive documentation must be provided showing how the executive/manager or person with specialized knowledge meets the requirements of the law. For executives/managers memorandum, emails, contracts, etc. must be provided showing how the person either runs a department or manages employees. For persons with specialized knowledge, evidence of completed training, education, confidentiality agreements, licenses, samples of products the employee developed and their market success are examples of the types of documentary evidence that must be provided.
Most employers transferring employees to the US want to do so quickly. The regular filing process to USCIS currently takes four to five months. However, there is an option to file for expedited processing, called premium processing. For an extra fee, USCIS must respond in two weeks. However, for premium processing cases, USCIS typically requests more evidence, thereby delaying the final decision for at least another two months.
The following chart shows the USCIS fees for L visas:
Additional Fees for L Nonimmigrant Petitions
|Reason for Fee
Employers seeking initial L-1 nonimmigrant status for a foreign worker
Employers seeking approval for a foreign worker already in L-1 nonimmigrant status to change employers, including petitions requesting new concurrent employment
|Fraud Prevention and Detection Fee
Fee should be submitted in a separate check or money order
|The L-1 Visa and H-1B Visa Reform Act of 2004 (part of Pub. L. 108-447 (PDF))
|L-1 petitioners that employ 50 or more employees in the United States if more than 50 percent of these employees are in H-1B, L-1A or L-1B nonimmigrant status (with exceptions below)
|Pub. L. 114-113
Fees should be submitted in a separate check or money order
|Signed into law Dec. 18, 2015, and is valid until Sept. 30, 2027. The fee is applicable for petitions filed on or after Dec. 18, 2015.
Finalizing the L Visa Process
Once USCIS approves an L visa petition, the case is transferred to the US embassy in the country in which the employee is located. The employee then must file a visa application (DS-160 form) with the embassy. The visa application is similar to an application for a tourist visa. Numerous questions are asked about the employee, his family, residential history, employment history, education and security issues. The employee then schedules an interview appointment at the embassy. The employee must bring his passport, passport photos, confirmation of his visa application, a copy of the approval notice from USCIS and often the letter from the US employer, detailing the job relocation. Most of the time the interview is very brief, and the visa will be approved unless there are security issues or if the employee overstayed a previous visa to the US.
Certain large multinational employers can apply for L Blanket Petitions. These petitions are utilized by companies that transfer numerous employees from around the world to their US offices. The blanket petition essentially covers all potential foreign employees of that company. Where such a petition exists, the employee will face a more extensive interview at the embassy because an individual petition was never filed for him. Rather, he or she is covered under the blanket. In these cases, the employee must prove to the consular officer that they qualify as an executive, manager or person of specialized knowledge. They must bring form I-129S, which is a substitute for the more typical I-129 Petition for Non-Immigrant Workers, as well as file the DS-160 visa application, as explained above. In addition, they must provide extensive documentation and letters from their foreign and US employers to show they are eligible for this visa.
The initial L visa normally is good for three years. However, if the US company to which the employee is transferring is less than one year old, then the L visa typically is limited to one year. Renewal of L visas occur in two year increments up to a total of seven years for an L-1A visa (executives/managers) or five years for an L-1B visa for workers with specialized knowledge.
Family Members of L-1 Visa Holders
One of the advantages of the L visa is the spouse of an L visa holder will be given an L-2 visa, which enables the spouse to work anywhere in the United States. Until recently, the spouse was required to file for work authorization following entry into the US. This often took several months and created unnecessary hardships for the families. However, under a recent administrative ruling, upon entry to the US, spouses of L-1 visa holders will have their passports stamped with L-2s, authorizing them to obtain a Social Security number from a local Social Security office and enabling them to work immediately upon entry into the US. It’s important for spouses of L-1 visa holders to bring with them their marriage certificates with a translation into English to show the border control. If they are accompanying the L-1 visa holder, the marriage certificate is all that is required to be stamped with L-2s. If they are traveling separately, then they must bring a copy of the L-1 visa holder’s visa, the approval notice from USCIS of the L-1 visa holder and the marriage certificate. Children of L-1 visa holders also are granted L-2 visas. They can attend school but cannot work.
Another advantage of the L-1 visa is that it is considered a dual intent visa. This means that unlike many other visas to the US, the L-1 visa holder may plan on eventually changing their status to that of a permanent resident in the US (green card holder). Unlike the L-1 visa, which limits the visa holder to working only for the sponsoring employer, a green card frees one to work anywhere. In addition, with the exception of occasional renewals, the green card has no end date – in other words, unlike the L-1 visa, the green card holder can remain permanently in the US and lead to US citizenship, if that’s desired.
Both the L-1A (executives/managers) and L-1B visas (specialized knowledge) can lead to green cards. However, the L-1A process is much easier. Most green card processes for employment-based petitions require what is called labor certification. This means the employer must prove that there are no other qualified candidates for the position after advertising the position in local media. This process requires a lot of work on the part of the employer and delays the eventual green card process for over a year. However, there is an employer-based visa category for multi-national managers or executives (EB-1) that does not require the labor certification process. The following is chart produced by USCIS:
You must have been employed outside the United States for at least 1 year in the 3 years preceding the petition or the most recent lawful nonimmigrant admission if you are already working for the U.S. petitioning employer. The U.S. petitioner must have been doing business for at least 1 year, have a qualifying relationship to the entity you worked for outside the U.S., and intend to employ you in a managerial or executive capacity.
Your petitioning employer must be a U.S. employer and intend to employ you in a managerial or executive capacity. The petitioner must have been doing business in the U.S. for at least 1 year, as a legal entity with a qualifying relationship to the entity that employed you abroad in a managerial or executive capacity.
No labor certification is required.
As the chart above shows, the employer can petition for an immigrant visa/green card for the manager or executive. The Petition is similar to that of the L-1A petition. The employer must show the employee has worked for the foreign company related to the US company for at least one year out of the past three years prior to receiving the L-1A visa. In addition, the US company must have been doing business in the US for at least one year.
This category of immigrant petitions is known as Employment Based Immigration – First Preference EB-1 or just EB-1, for short. The employer uses form I-140 (Immigrant Petition for Alien Workers) instead of the form for non-immigrant workers. In most situations, the L-1A worker can also apply for a green card with his family at the same time. It requires the filing of form I-485 Adjustment of Status for the employee and for each family member. Also, separate work authorization applications can be simultaneously filed. Unfortunately, at this time premium processing cannot be filed for most multi-national managers/executives. Consequently, the process will take many months.
An employer also can apply for an immigrant petition for an L-1B worker, but the process is much more complicated and time consuming. First, the employer must apply to the Department of Labor to obtain the prevailing wage for the position. That takes several months. Then, the employer must advertise for the position in local media. Potential qualified candidates must be interviewed. If the employer deems none of the candidates are qualified, he must note the reasons. Finally, the employer submits a Labor Certification to the Department of Labor on behalf of L-1B employee, explaining the reasons why the employee is the only qualified candidate of those who applied for the position. If the Labor Department approves the application, only then can the employer file an immigrant petition on behalf of the employee. In this case the employer files either an EB-2 or EB-3 immigrant petition, depending upon the education level of the employee. In many, but not all cases, the employee can also file for a green card for himself and his family simultaneously.
As can be seen above, the process for an L-1 visa application is complicated. In almost all cases, hiring the right immigration attorney is crucial. We at Cohen and Brosh Law Offices have filed numerous successful L-1 petitions for both L-1A executives/managers and L-1B employees with specialized knowledge. Contact us at cohen Brosh today!