Do I need an L1 EAD?
Non-US employees will in general, regardless of citizenship or national origin, need to prove their entitlement to work in the USA. In some instances you will need to apply for what’s known as an “Employment Authorisation Document” (EAD).
As a non-US employee working for a multinational company looking to temporarily transfer to an affiliated U.S. office, you will need to apply for an L1 intra-company transfer visa.
This is a nonimmigrant or temporary visa that will allow you to travel to the United States for the purpose of working for your existing company or organisation, albeit in a parent, branch, affiliate or subsidiary of the overseas office in which you work.
The following guide looks at whether, as an intra-company transferee, you will also need to apply for an L1 EAD.
What is an EAD?
An Employment Authorisation Document, or EAD, is the official document that you must provide to your prospective U.S. employer to prove your legal entitlement to work in the USA.
The EAD is evidence that you are authorised to work in the United States by reason of your immigration status, or otherwise, for a specified period of time.
However, there are certain categories of visa-holder that are exempt from the EAD requirement. In particular, you do not need to apply for an EAD if you have a nonimmigrant visa that authorises you to work for a specific employer. This includes L1 visa holders.
The permission to work as an L1 visa holder is implicit within your nonimmigrant classification, such that an L1 EAD is simply not required. Instead, your authorisation to work comes from the permission already granted under L1 status to travel to the United States as an intra-company transferee.
Please also note that if you have lived in the United States under L1 status and subsequently apply for lawful permanent residence, your green card will then constitute evidence of your employment authorisation. In other words, an L1 EAD will again not be required.
What is the alternative to an L1 EAD?
To be granted L1 status, and thereby the necessary authorisation to work for a specific employer, your prospective U.S. employer will need to file a petition on your behalf with the United States Citizenship and Immigration Services (USCIS).
To start the petition process your employer will need to submit Form I-129 (Petition for a Nonimmigrant Worker), and pay the appropriate fee, at least 45 days but no more than six months before your intended start date.
The petition will need to demonstrate that the eligibility criteria for an L1 visa have been satisfied. The requirements for an L1 visa can be complex, and will require considerable documentation in support (see below).
In some cases, your employer may have already filed a blanket petition to cover the transfer of several employees, thereby allowing you to present your visa application directly to your local U.S Embassy or Consulate. Otherwise, you will first need to await for USCIS approval based on your individual petition.
Once your petition has been approved, you can apply for your L1 visa with the Department of State. You will need to submit online Form DS-160, together with an additional fee, and schedule a consular interview appointment.
At interview you will be required to submit various documents in support of your application and will be asked detailed questions so as to satisfy the consular officer that you are eligible for L1 status.
At the conclusion of your interview, the officer should inform you whether your L1 visa application has been approved, denied, or if further documentation is required.
What are the types of L1 visa?
The L1 visa can be split into two categories: L1-A and L1-B. The L1-A visa is for managers and executives, whilst the L1-B visa is for those with specialised knowledge of the company’s products, services or management procedures. In either case you will need to be transferring to an affiliated U.S. office in the same or similar role.
The L-1A and L1-B classification also enables multinational companies that do not yet have an affiliated U.S. office to send overseas executives, managers or specialised knowledge employees to travel to the United States with the purpose of establishing one.
What are the L1 visa criteria?
To be eligible for an L1 visa you will need to satisfy the following criteria:
- You must have been employed in an executive, managerial or specialised knowledge role by a parent, branch, affiliate or subsidiary of the U.S. company for at least one full year out of the three years immediately preceding your admission to the United States.
- You must be seeking to enter the U.S. to continue service with a parent, branch, affiliate or subsidiary of that company in the same or similar role.
- There must be a qualifying relationship between the overseas and U.S. company, meaning that there needs to be common ownership and control, and that this relationship will continue for the duration of your stay in the United States under an L1 visa.
For overseas executives, managers and specialised knowledge employees looking to establish an affiliated office in the United States, your employer must also show the following:
- That sufficient physical premises have been secured to house the new office in the United States, and either;
- The intended U.S. office will support an executive or managerial position within one year of approval of the petition, or;
- The company has the financial ability to compensate you as a specialised knowledge employee and begin doing business in the United States.
What are the potential pitfalls in seeking an L1 visa?
There can be a number of potential pitfalls when seeking the necessary authorisation to transfer to, or set up, an affiliated U.S. office as an executive, manager or specialised knowledge employee.
In particular the definitions under the Code of Federal Regulations in relation to L1-A and L1-B employees is strict, such that considerable documentation will be required to prove that you have worked in the requisite capacity overseas and, that you will continue to work in the same or similar capacity in the U.S.
As an executive or manager, you must have a certain level of authority and be responsible for the running of the business and/or managing other employees. As a specialised knowledge employee, you must have proprietary knowledge that can only be gained through experience with that particular employer and is key to the success of that organisation.
Do you have a question about L1 EAD?
As permission to work in the United States as an intra-company transferee is implicit within your nonimmigrant L1-A or L1-B visa status, you do not need to obtain an L1 EAD.
The challenge comes largely in the petitioning process for the L-1 visa itself, requiring contribution and supporting documents from both the employer and the employee.
If you wish to secure authorization to work in the US as an international transferee, we can help. NNU Immigration are specialist US immigration attorneys. We advise businesses and their employees on US visa and immigration options and support through the application and interview process.
Contact us for advice with your L visa.
This article does not constitute direct legal advice and is for informational purposes only.