Tuesday 18 February 2025

L-1 visa: Temporary work visas for company transferees

An L-1 Intracompany Transfer visa allows foreign companies with related US entities (ie parent, subsidiary or affiliate under common control) to transfer employees to the US companies. Compared to other categories, such as the E-1 or E-2, the employee need not have a particular nationality to qualify.

To qualify, the employee must have been employed by the foreign affiliate for at least one year within the three years prior to filing the petition. Although a traditional, salaried employment relationship makes the petition stronger, we have obtained L-1 status for clients where the beneficiary was a contractor. This requires in in-depth understanding of legal and evidentiary requirements for establishing the requisite employment relationship.

There are two steps in applying for an L-1 visa for an employee.  First.  the company should file an individual petition with USCIS for approval of the specific employee’s L-1 status. Second, upon approved of the petition by USCIS, the employee should apply for an L-1 visa at a US Embassy or Consulate abroad. Alternatively, if the sponsoring employer and its affiliates already have been approved by USCIS for a Blanket L-1 petition, the employee may apply directly to an Embassy or Consulate for an L-1 visa, based on the Blanket approval.

L-1A and L-1B categories

There are two categories for the L-1 visa: L-1A and L-1B. To qualify for an L-1A (as a manager or executive), the employee must be destined for a managerial or executive role and have at least one year of managerial or specialized experience with the company abroad. The managerial role and experience can be as a people manager, supported by organizational charts illustrating the candidate’s direct reports, and other documentary evidence such as correspondence evidencing direction and supervision of direct reports. Alternatively, the beneficiary can qualify as a “function manager” if the employee will manage (or has managed) an essential function for the company. The necessary documentation requires more detail for a function manager than for a people manager because it must demonstrate how critical the function is and how the employee manages, or will manage, the function. Such evidence could include correspondence showing that the employee instructed other departments to undertake the routine work of the function, sets strategy for the function even if subject to executive approval, etc.

To qualify for an L-1B (specialized knowledge), the employee must have at least one year of managerial or specialized experience abroad, often with specialized training and education evidenced by certificates or other documentation and be destined for a specialized role for which other candidates would be difficult or impossible to find. To be successful, the L-1B petition should evidence that the employee is qualified for a role requiring highly specialized expertise, for which no other (or almost no other) persons are available, supported by substantial documentation of the employee’s use of these skills in the foreign role and the employee’s unique training and education, which is required for the role.

Requirements for the US sponsoring employer and the employer abroad

To sponsor an employee in L-1 status, the US employer must have an established business in the US which is related to the employing entity abroad (ie both companies are under common control). The US and foreign companies are required to continue operations during the employee’s stay in L-1 status. For a successful petition, operations should be documented with substantial evidence, such as tax filings showing revenue and a roster of employees. We have enabled clients who did not have standard evidence of operation to obtain L-1 visas using alternative documentation.

If the US company is newly operational, such that it cannot provide evidence of US operations for at least a year, the employee may still qualify under the “new office” L-1, with the duration of the employee’s status limited to one year (compared to the initial three-year status issued for standard L-1 petitions).

Duration of authorized work status as an L-1 visa holder

An employee’s initial L-1 status (ie the authorization for working in the US for the sponsoring employer) may be granted for up to three years. However, as mentioned above, if the US company is considered by USCIS to be a “new office,” because the evidence is insufficient to show operations in the US for at least a year, USCIS will limit the employee’s initial status to one year.

L-1 status can be extended in two-year increments, but the total time (including extensions) is capped at seven years for an L-1A visa holder, and five years for an L-1B visa holder. If qualified and depending on circumstances, an L-1B visa holder can change status to L-1A, extending the maximum time from five years permitted for L-1B visa holders, to the seven years allowed in L-1A status (if extended). The employee may have “intermittent” L-1 status, which is suitable for occasional visits to the US in L-1 status, not to exceed a cumulative six months in any given year. Intermittent status may be extended indefinitely.

Applying for an extension requires filing a new petition with updated documentation and support. If the US employer requires the employee to remain in the US, the extension must be filed before expiry of the current status, which gives the employee a grace period of 240 days of work authorization pending approval. If the employee’s current status expires while the employee is outside the US, the employee cannot re-enter the US until an extension has been approved.

L-1 visa duration (required for entering the US in L-1 status) depends on the nationality of the employee, as the reciprocity requirements determine the duration and any fees for visas. To enter the US, L-1 visa holders must carry both their L-1 visa and their currently valid I-797 notice of approval. Upon entry, Customs and Border Patrol (CBP) will update the employee’s online arrival and departure record, Form I-94. As the I-94 is proof of immigration status, the employee should ensure that the I-94 correctly indicates entry in L-1 status valid through the date on the I-797. Once entering the US, the L-1 employee can work only for the US petitioner.

L-1 Blanket Petition can provide substantial value

A sponsoring employer normally would file a petition for each individual employee, incurring the expense of a new petition for each employee. If the employer expects to transfer many employees over to the US on L-1 visas, the company should consider whether it qualifies for an L-1 Blanket petition.  For a corporate group to qualify, there must be three or more commonly controlled companies or branches in both the US and abroad, with the US entity or branch operating for at least a year. Additionally, the US entities must meet one of the following requirements: have at least $25 million in annual revenue; have a US workforce of at least 1,000 employees; or have obtained at least 10 L-1 approvals in the prior year.

An approved L-1 Blanket could be more cost-efficient over time and offers a significantly more streamlined process for employee L-1 applications. Thus, instead of preparing a costly and lengthy L-1 petition for every employee, the sponsor submits the initial L-1 Blanket petition for the group of companies. Assuming the Blanket petition is approved, for the initial three years, the company need not file expensive and complicated USCIS petitions for each employee but simply proceed to schedule Embassy appointments for its L-1 employees. The employee should bring a substantive visa application to the interview, including evidence of their qualifications for L-1 status.

The L-1 Blanket requires one renewal before its initial three-year expiry, which typically will be renewed for an indefinite period, requiring updates only when there is a change to the corporate organization.

Spouse and Children of L-1 visa holders

Spouses and children can accompany L-1 visa holders by applying for L-2 visas at a US Embassy or Consulate, providing documentation of their familial relationship to the L-1 visa holder. To enter the US, L-2 dependents must carry both their L-2 visa and (if not accompanying the principal visa holder), the principal’s I-797 notice of approval of current L-1 status. L-2 spouses obtain authorisation to work upon entering the US if correctly indicated on their I-94. As such, the L-2S notation on the spouse’s I-94 should be sufficient evidence of work authorization for a US employer’s I-9.

For advice on L-1 visas and US immigration matters please contact your Laura Devine Immigration attorney or email enquiries@lauradevine.com.