Intracompany Transfer Visa for the USA
The intracompany transfer visa, officially known as the L-1 visa, permits qualifying non-US citizen professionals of multinational companies to work within a US-based parent, branch, affiliate or subsidiary of the same company.
The L-1 visa category can also be used if a company does not yet have an operation in the United States, but wishes to deploy a key employee to the US with the purpose of establishing a presence.
L-1 petitions are facing greater scrutiny under the current US Administration. With US immigration policy favoring US resident workers, L-1 applicants and their employers will have their work cut out when building their petition and satisfying adjudication thresholds.
Careful consideration should initially be given to eligibility under the visa classification, and then to ensuring a comprehensive and robust application is compiled and presented to the authorities to evidence that both the individual applicant and the role they will be undertaking while in the US meet the stringent visa requirements.
We look at some of the key questions to ask when preparing to apply for an intracompany transfer visa to the USA.
L-1A or L-1B intracompany transfer visa?
There are two different types of L-1 visa:
- L-1A visa for employees working in an executive or managerial capacity.
- L-1B visa for employees who have specialized knowledge about a company’s products, services and management procedures.
The L-1A visa, specifically for executives and managers, allows key personnel who can prove they have previously worked in this capacity to transfer to the US to work in the same or similar role.
However, as an L-1A applicant, there must be clear evidence of your position within the company proving that you plan, organize, direct and control the organization’s major functions. You will need to demonstrate a certain level of authority, whereby you are responsible for running the business and/or managing other employees.
To be eligible for an L-1B visa, you do not need to be working in an executive or managerial role, but you do need to possess specialized knowledge of the company that you work for.
As an L-1B applicant, you must possess extraordinary and inimitable proprietary knowledge over the organization’s products, services, or its management procedures, typically gained through years of experience, making you vital to the overall functioning and competitiveness of the business.
Please note that knowledge that is widely held, or related to common practices or techniques that are readily available in the U.S job market, will not be regarded as “specialized” for the purposes of L1B visa classification.
Intracompany transfer visa requirements
To be eligible for an L1 visa, under both L1A and L1B classification, the petitioner will need to show the following:
- You have worked in an executive, managerial or specialised knowledge role for a period of at least one year in the three years prior to the filing of the petition for L1 status.
- You will be undertaking work in the same or similar role in a parent, branch, affiliate or subsidiary of the same company in the United States.
- There is a qualifying relationship between the overseas company and the U.S. company, namely, there is a high degree of common ownership and control between the two entities.
- The relationship between the overseas and U.S companies existed for the duration of your one-year period of employment abroad.
- The relationship will continue for the duration of your stay in the United States under L1A or L1B status.
How to apply for a US intracompany transfer visa
There are two stages in obtaining an intracompany transfer visa: filing a petition on behalf of their employee, and the employee submitting the visa application itself once petition approval has been received.
The L1 visa application process first requires the US employer to file a petition on the applicant’s behalf to the United States Citizenship and Immigration Services (USCIS). This can be done using Form I-129 (Petition for a Nonimmigrant Worker).
In support of the petition, the employer will primarily need to prove the relationship between the U.S. company and the company abroad. This demands a considerable amount of documentation in support.
However, for larger companies that fulfill a number of regulatory requirements, there is the option to apply for a blanket L petition. A blanket petition can be used to transfer several key personnel to the United States.
To qualify for blanket L certification, the employer will need to satisfy one of the following three criteria:
- The company has already transferred ten L-1 managers, executives, or specialised knowledge professionals to the United States in the last twelve months.
- The company has U.S. subsidiaries or affiliates with combined annual sales of at least $25 million.
- The company has a U.S. workforce of more than 1,000 employees.
Once approved, a blanket petition removes the need to file an individual petition for each and every transferee, shortening the visa process from several months to just weeks.
For both individual and blanket petitions, expert advice should be sought on the nature of the documentation required to prove the requisite qualifying relationship with the overseas company.
This will include, but is by no means limited to, articles of incorporation, organisational charts showing the structure and relationship between the two entities, stock issuance and stock certificate records, promotional business material, annual reports, financial statements and tax returns.
Once the L-1 petition has been approved, applicants will need to apply to the Department of State for the visa using online Form DS-160. They will also need to schedule an interview at a U.S Embassy or Consulate overseas, usually in the applicant’s country of residence.
At interview, applicants will be required to attend with various documents in support of the application. As with the petition, the documentation required is extensive. This includes the employer’s approved petition, a letter confirming the transfer and job description, proof that the individual has worked within that company for at least one year in the past three years and, where relevant, proof of specialized knowledge.
They will also be required, amongst other things, to answer numerous questions relating to work history with the overseas company and their future role with the US company.
In the event that the information and documentation provided are deemed incomplete, applications may be delayed with requests for further information. In some instances it can even be denied, so seeking expert legal help in advance is always advisable to avoid this happening.
Extending the L-1 visa
If granted an L1 visa, typically this will be for an initial period of three years, unless the visa holder is setting up a new affiliated office in which case the visa will last for just one year.
In either case, the visa can be extended in increments of up to two years for a maximum period of seven years under an L1A visa and for five years under an L1B visa.
It may be possible for an L1 visa holder to transfer from an L1B to an L1A visa from within the United States, if they satisfy the visa criteria.
For those to settle in the US on a permanent basis, under an L1 visa there may be the option to apply for a green card. The L1 is considered by the USCIS to be “dual intent”, meaning visa holders are able to pursue lawful permanent resident status during their stay.
Indeed, many overseas executives and managers come to the US under an L1A visa, then apply at a later date to change their status using the EBC1 route. It is a little trickier to apply for a green card under L1B status, where they may need to consider the EB2 or EB3 routes instead, but, with the right legal advice, it is still possible.
L-1 visa application challenges
There can be various challenges when looking to transfer to an affiliated US office.
Considerable documentation will usually be needed to prove the relationship between the overseas and US companies. This can include articles of incorporation, organisational charts showing the structure and relationship between the two entities, promotional business material, annual reports, financial statements, as well as tax returns.
The timescales involved in petitioning for an L1 visa can also be problematic, especially where, as a key employee, you are needed in the US at the earliest possible opportunity, or the timing of any transfer is otherwise critical to business operations. In some cases, the intracompany transfer visa process can take several months, which can also be protracted by wider service issues or travel restrictions such as the US travel ban and NIE waiver requirement. Take advice to ensure you are informed of the likely processing times for your application.
Transferring multiple employees
Although the approval of a blanket L petition by USCIS does not guarantee that an employee will be granted an L1 visa, it does remove the need to file an individual petition for each and every transferee, together with the detailed documentation in support, thereby shortening the overall process from several months to just weeks.
Premium processing may also be available to expedite the petition processing time to just 15 calendar days. That said, this will cost an additional USD $1,410, on top of any other fees payable. Responsibility for most of the fees will lie primarily with the employer, for example, the basic petition filing fee of USD $460, in addition to a fraud prevention and detection fee of USD $500.
Moreover, companies that employ 50 or more employees in the United States, where 50% of those individuals hold L1 visa status, may also be liable to pay an additional public law fee of USD $4500. Please note, where an employer files for a blanket L petition, both the public law and anti-fraud fees are only payable for the principal applicant.
Opening a new US branch
Intracompany transfer visas can be used by non-US companies to expand existing operations in the US by deploying either executives or managers, or specialized knowledge employees, to establish a new US office.
The company must be able to show that sufficient physical premises have been secured to house the new office in the United States. This could include, for example, a lease for office space, sales contracts and applicable business permits.
For L1A visa holders, it must be shown that the office will support an executive or managerial position within 1 year of approval of the petition, while for L1B visa holders the employer has to prove the financial ability to compensate the specialized knowledge employee and begin doing business in the United States.
The rules and requirements relating to L1 visas are strict and current decision-making affords no benefit of the doubt in favor of the applicant. There is zero room for error across the petitioning process, requiring contribution and supporting documents from both the employer and the employee.
As specialist US immigration attorneys, NNU Immigration advise businesses and their employees on US visa and immigration options and support through the application and interview process.
If you wish to secure an intracompany transfer visa to the USA, we can help. We understand that employee transfers can be business- and project-critical, and the commercial value of this type of mobility to an organisation.
Contact us for advice.
This article does not constitute direct legal advice and is for informational purposes only.