L Visa & the Green Card

L visas are issued to intracompany transferees. L-1 for principal and L-2 for spouse or child. L visa allows companies operating outside of the U.S., including companies operating in China, Hong Kong and Taiwan, to transfer their employees to work at their U.S. subsidiary, affiliate, branch or parent company or to start a new company in the U.S.

Qualifying Organization As Employer

The employer, in order to successfully petition an L visa for its employee(s) to come to work in the U.S., must be a U.S. company or foreign organization doing business both in the U.S. and the foreign country throughout the L visa holder's assignment. The U.S. company can be a subsidiary, affiliate, branch or parent company of the foreign company, or vice versa. The parent-subsidiary relationship requires some stock ownership and control. Joint venture companies, with a 50-50 stock ownership arrangement, would qualify if the co-venturer claiming to be a parent can exercise negative control by veto power.

The employer does not have to be a big corporation. It can be a partnership, even a sole proprietorship. It can also be a religious, cultural or charitable non-profit organization, a labor organization, trust, unincorporated association, and the commercial instruments of foreign governments.

Qualifications of the L Visa Holder

The employee must have worked continuously for a minimum of one year out of the three years immediately preceding the petition in a capacity in the foreign company that is managerial, executive or involves specialized knowledge, and is coming to the U.S. to continue to render services to the same employer in a managerial, executive capacity or in a position that calls for specialized knowledge.

L-1A Visa

Managers and executives are issued L-1A visas, initially for a period of three years, extendible in increments of up to two years for a maximum of seven years.

Who Qualifies as a Manager?

A manager is involved in the high-level management of an essential function as well as supervising the work of other supervisory, managerial, or professional employees.

Who Qualifies as an Executive?

Executives direct the management of the organization or a major function or component of the organization, establish policies and goals of the organization, and exercise wide latitude in disrectionary decision-making.

L-1B Visa

Intracompany transferees with specialized knowledge are issued L-1B visas, initially for a period of three years, extendible up to five years maximum.

Who Qualifies as Employee with Specialized Knowledge?

An employee is considered to be in a capacity involving specialized knowledge if s/he has special knowledge of the organization's product or other interests and their application in international markets or an advanced level of knowledge of the organization's processes and procedures of operation such as service, research, equipment, techniques, managment. Such specialized knowledge does not have to be proprietary, exclusive, unique or narrowly held. Also, unavailability of personnel with such specialized knowledge in the U.S. labor market is NOT a requirement. Specialized knowledge, however, is not general knowledge.

Start-up or New Office

If a foreign company is sending its employee to the U.S. to start a new office, the employee's duty requirements are somewhat softened during the start-up operation. To apply for L-1 visa, petitioner must submit proof of ownership and control, a lease or deed for the new company premises, and financial resources to sustain the operation. Particularly, the petition must include information on

---the nature of the office, including its scope, organization structure and financial goals;

---the size of the U.S investment and the foreign entity's financial ability to pay teh beneficiary and to begin doing business in the U.S.;

---the foreign entity's organizational structure

The L-1 work visa for such employee(s) is initially for one year, renewal depending upon a showing that the foreign and the U.S. entities are still "qualifying organizations" and that the U.S. employer has been doing business for the prior year. Petition for extension must include a statement of the beneficiary's duties both for the prior year and the period of extension, a statement of the operation's staffing pattern, number and types of positions filled, wages paid, and evidence of the U.S. operation's financial status.

L-1 Visa & Green Card

L-1(a) visa holders, who are managers and executives, have a "priority worker" status, i.e., a first employment-based (EB) preference, in the permanent residence selection system.

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Examples of Successful Petitions for L-1 Visas

As Managers

Case No. 1. A foreign restaurant organization transfers one of its representatives to the U.S. to oversee a business operation involving the opening of three restaurants in three years, developing the sites and managing the operations.

Case No. 2. A foreign company sends one of its employees to the U.S. to run a one-man operation in the scrap-metal business. As the president and the only employee of the U.S. company, the beneficiary is to act through subcontractors, to procure and extract scrap metal for export, and to develop real estate. His annual salary is set at $40,000.

Case No. 3. The beneficiary of the L-1 petition is the president of the U.S. operation that has only one other employee. The U.S. operation is in the business of procuring and selling aircraft equipment. Like in Case No. 2, above, the favorable decision is based on the alleged responsibilities of the beneficiary such as control of financial matters, establishing goals and policies, signing checks and contracts, and administering the sales, marketing. In both Case No. 2 and this case, negotiating deals is the key function and is to be done by the beneficiary himself.

As an Executive

A foreign company engaged in the sale and rental of sound equipment transfers its general manager to its U.S. office. The transferee is to run the N. American operations by overseeing a small, non-professional staff. He is to hire and train new personnel, negotiate contracts, manage the inventory and purchasing, insure the consistency of book-keeping with company policies, and direct expansion. He will report only to the parent company's CEO and enjoy wide latitude in decision making. He is to be the top manager of the U.S. operations, with an annual salary of $50,000. AAU found the beneficiary to be a functional manager having "managerial control and authority over all of the functions and operations of the company" and "operating at a senior level within the organization's hierarchy." Petition granted.

As Employee with Specialized Knowledge

Characteristics of Specialized Knowledge Employee are:

with knowledge that is valuable to the employer's competitiveness in the marketplace;

qualified to contribute to the U.S. employer's knowledge of foreign operating conditions;

has been utilized as a key employee abroad and has been given significant assignments which have enhanced the employer's productivity, competitiveness, image or financial position;

with knowledge which can be gained only through prior experience with that employer.

Law Offices of Jason J. Lee
A Law Corporation
301 N. Lake Avenue, 7th Floor
Pasadena, California 91101-1919
Telephone: 626-396-9397
Fax: 626-396-9114
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Email: leelawla@sbcglobal.net

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