L1 visa eligibility check
Transferring to a brand or affiliate in the US for many is an exciting opportunity for professional and personal development. One of the more complicated aspects of arranging the transfer will be securing the relevant US visa.
Intracompany transfers are generally dealt with under the L-1 classification.
The requirements of the L-1 visa are however strict. This is exacerbated by US immigration policy favoring US-resident workers, meaning any application to hire a non-US worker in place of a US citizen or resident will be scrutinized during adjudication.
An extremely useful first step is to carry out an L1 visa eligibility check, to apply your circumstances to the visa requirements and confirm that you do indeed qualify under the route, or to ascertain if an alternative visa classification would better suit your needs.
Which L-1 visa are you eligible for?
The L1 visa allows key professional employees of multinational companies to transfer to the parent, branch, affiliate or subsidiary of the same company in the United States on a temporary basis.
L1 classification is divided into two categories: the L1-A visa status and the L1-B visa status.
The L-1A classification enables a U.S. employer to transfer an employee working in an executive or managerial capacity from one of its affiliated overseas offices to one of its offices in the United States.
Executive capacity generally refers to an employee’s ability to make decisions of wide latitude without much oversight, whilst managerial capacity refers to the ability of an employee to supervise and control the work of other employees and to manage the organisation, or a department, subdivision, function, or component of the organisation without direct supervision.
In other words, to qualify as an executive or manager, you must have a certain level of authority within the company or organisation and be responsible for either running the business, or part thereof, and/or managing employees.
Under L1-B classification you must possess essential specialized skills or knowledge that are key to the success of the company or organisation that you work for. Accordingly, L1-B visa holders are commonly referred to as “specialized knowledge employees”.
Specialized knowledge means either:
- special knowledge possessed by an individual of their employer’s products, services, research, equipment, techniques, management or other interests and its application in international markets, or
- an advanced level of knowledge or expertise in the organisation’s processes and procedures.
As an L1-B applicant you must possess knowledge that is not commonplace either within the industry or within the organisation, typically gained through years of experience, making you vital to the overall functioning and competitiveness of the business.
L1 visa eligibility criteria
There are various criteria that must be satisfied to obtain L1 visa status, both by the petitioning employer and the employee.
For your employer, the following requirements must be met:
- Your U.S. employer must have a qualifying relationship with a foreign company, which means there must be sufficient common ownership and control. Types of qualifying relationships include parent company, branch, subsidiary or affiliate, collectively referred to as qualifying organisations.
- Your employer must currently be, or will be, doing business as an employer in the U.S. and in at least one foreign country either directly or through a qualifying organisation for the duration of your stay as an L1 visa holder. This means they are actively and continually providing goods and/or services, whereby simply having an agent or office in the U.S. and abroad does not qualify.
For you, as the L1-A visa applicant, the following requirements must be met:
- You must have completed a minimum of one year’s continuous employment for the company outside of the U.S. within the three years immediately prior to your admission to the United States. Any time spent working in the United States will not count towards the twelve months.
- You must have been working in an executive or managerial role throughout the twelve-month qualifying period.
- You must be seeking to enter the United States to provide service in an executive or managerial capacity for a branch of the same employer or one of its qualifying organisations.
For you, as the L1-B visa applicant, the following requirements must be met:
- You must have completed a minimum of one year’s continuous employment for the company outside of the U.S. within the three years immediately prior your admission to the United States. Any time spent working in the United States will not count towards the twelve months.
- You must have been working in a specialised knowledge role throughout the twelve-month qualifying period.
- You must be seeking to enter the United States to provide service in a specialised knowledge role for a branch of the same employer or one of its qualifying organisations.
Additional L1 criteria
The L1 visa classification also enables a foreign company that does not yet have an affiliated U.S. office to send an executive, manager or specialized knowledge employee to the United States with the purpose of establishing one.
For foreign employers seeking to send a key professional employee to the United States to establish a new office, the employer must also show that:
- They have secured sufficient physical premises to house the new office.
- You, as the employee, have been employed as an executive or manager, or in a specialised knowledge role, for one continuous year in the three years preceding the filing of the petition, and
- The intended U.S. office will support an executive or managerial position within one year of the approval of the petition for L1-A visa holders, or the employer has the financial ability to compensate the employee and begin doing business in the United States for L1-B visa holders.
L1 visa eligibility check: potential pitfalls
The criteria relating to L1 visa classification can be complicated and protracted. Unless your petitioning employer has already been given blanket approval for numerous employees to be transferred to an affiliated U.S. office, an individual petition will need to be filed on your behalf. This can be a lengthy process requiring extensive documentation.
Your employer will only be eligible to apply for blanket approval if they have at least three offices, whether in the U.S. or abroad, together with an office that has been doing business in the United States for at least one year, plus meet at least one of the following criteria:
- Have filed at least ten successful L1 petitions in the preceding twelve months.
- Have a minimum of 1000 employees based in the United States.
- Be able to show company-wide total annual sales of at least US$25 million.
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.