Intracompany transfers to the US – application challenges
What are the challenges of securing immigration permission to transfer to a US branch or affiliated office?
An intracompany transfer visa, or an L1 visa as it is officially known, is a nonimmigrant visa that will allow an employee of a multinational company to transfer to the parent, branch, affiliate or subsidiary of the same company in the United States, or even to set up a new affiliated US office.
There are two types of L1 visa: the L-1A for employees who hold an executive or managerial role, and the L-1B for employees who have specialised knowledge of the company’s products, services and/or management procedures, typically gained through years of experience, making them 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 US job market, will not be regarded as “specialised” for the purposes of L1B visa classification.
Who is eligible for an intracompany transfer visa?
To be eligible for an L1 visa, under either the L1A and L1B classification, the following criteria will need to be satisfied:
- The employee has worked for the company or organisation in an executive, managerial or specialised knowledge role for a period of at least 1 year in the 3 years prior to filing the petition for L1 status.
- The employee will be undertaking work in the same or similar capacity in a parent, branch, affiliate or subsidiary of a US affiliated office.
- There is a qualifying relationship between the overseas and US company or organisation, namely, there is a high degree of common ownership and control between the two entities.
- This relationship will continue for the duration of the employee’s stay in the United States under either L1A or L1B status.
How long does an intracompany transfer visa last?
For employees travelling to a US affiliated office, the L1 visa will initially be granted for a period of 3 years. However, for an employee looking to open up a new office in the United States, the initial period will be for just 1 year.
However, in either case, and subject to meeting the ongoing qualifying criteria, an application can be made to extend the L1 visa in increments of 2 years, for up to 7 years for L1A executives and managers, and 5 years for L1B specialised knowledge employees.
It is also possible for an L1 visa holder to transfer from an L1B to an L1A visa from within the United States or, where the job role requires, for them to settle within the USA on a permanent basis.
What is the application process for an intracompany transfer visa?
There are two stages in obtaining an intracompany transfer visa: filing a petition on behalf of your employee, and your employee submitting the visa application itself once petition approval has been received.
As the employer of a prospective L1 visa holder, you will be responsible for filing a petition on your employee’s behalf with US Citizenship and Immigration Services (USCIS) using Form I-129, Petition for a Nonimmigrant Worker. This should be filed at least 45 days before the employees’ start date, but no more than 6 months before their employment begins.
You will be given a notice of approval on Form I-797 once the L1 petition has been approved by USCIS. Your employee can then apply for their L1 visa using Form DS-160, Online Nonimmigrant Visa Application. They will also be required to attend an interview with the US Embassy or Consulate in their country of residence for detailed questioning relating to, amongst other things, their previous and prospective job roles.
Can an intracompany transfer visa be used to expand in the US?
As previously indicated, an intracompany transfer visa can be used to expand your operations in the US by sending over either an executive or manager, or a specialised knowledge employee, to establish a new US office.
However, you 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 you must also show that the office will support an executive or managerial position within 1 year of approval of the petition, while for L1B visa holders you must prove that you have the financial ability to compensate the specialised knowledge employee and begin doing business in the United States.
What are the challenges when applying for an intracompany transfer visa?
There can be various challenges when looking to transfer a key professional employee to an affiliated US office, not least in providing the necessary documentation in support of the petition.
By way of example, 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 a key employee is needed in the US at the earliest possible opportunity, or the timing of any transfer is otherwise critical to your business operations. In some cases, this process can take several months.
That said, where you are transferring several key personnel and you satisfy a number of key regulatory requirements, you may be able to apply for prior approval under what’s known as a blanket petition. To qualify for blanket L certification, in addition to other requirements, you will need to satisfy one of the following three criteria:
- The company has already obtained at least 10 L1 approvals from USCIS in the last twelve months
- The company has US subsidiaries or affiliates with combined annual sales of at least $25 million
- The company has a US workforce of more than 1,000 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.
You could also consider paying for premium processing 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 you as 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, if you employ 50 or more employees in the United States, where 50% of those individuals hold L1 visa status, you 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.
Do you have a question about an intracompany transfer?
The successful grant of L1-A and L1-B visa status will require careful preparation and extensive documentation in support.
NNU Immigration are specialist US immigration attorneys. From our central London base, we support companies from across the globe with L-1 visa petitions, ensuring initial eligibility and exploring potential alternative routes to transfer key workers to the US. We also provide guidance to the employer and employee through the petitioning process, and also extension applications.
If you have a question about the L-1 visa eligibility or application, contact us.
This article does not constitute direct legal advice and is for informational purposes only.