L-1A and L-1B visas may be issued when an employer files a petition to obtain authorization for qualified employees to be allowed to work and live in the United States.
The L-1A visa is for intracompany transferees who work in managerial or executive positions in a company that is located outside the United States.
The L-1B visa is for intracompany transferees who work in positions requiring specialized knowledge.
Establishing New Offices
Foreign employers seeking to send an employee to the United States as an executive or manager to establish a new office must show:
They have a physical location for the new office;
The employee has been employed as an executive or manager for one continuous year in the three years before filing the petition; and
The new office will support an executive or managerial position within one year of the approval of the petition.
Retaining an L1 visa lawyer with experience and knowledge of the process is absolutely necessary when handling such important immigration visa matters.
Frequently Asked Questions for L-1A Visa
This memorandum addresses several common questions among prospective investors concerning eligibility for the L-1A temporary work visa.
What is the Key Requirements for an L-1A visa or an EB-1C Green Card?
They allow a foreign executive or manager who has at least 1 year of full-time employment for a foreign company to be transferred to work as an executive or manager of U.S. company affiliated by ownership with the foreign company. The L-1A temporary work visa and the EB-1C Green Card have similar requirements. If the foreign executive or manager is coming to start a new business, the initial visa is for one year, renewable for unto 7 years. Typically, we advise our clients to file for EB-1C after one year of working in the U.S.
What is an Executive or Manager under the L-1A or EB-1C Process?
Executives are persons who determine the business goals, business strategy, budget and policies of a company. Examples of executive positions include President or Chief Executive Officers.
Managers are usually persons who run the company by giving instructions to other managers or professionals. They are not first-line supervisors who manage production workers. Examples of managers include Chief Executive Officers, Chief Operating Officers, General Managers or Department Managers. Sometimes, managers manage an important activity for a company but have no direct subordinate employees (called functional managers). Examples of a functional manager can include a Business Development Manager.
Can an Owner of a Foreign Company Apply for an L-1A visa or EB-1C Green Card?
Yes. In most cases, the owner of a foreign company qualifies as an executive or manager.
What is an Affiliation between a Company and a U.S. Company?
Affiliation is best proven through ownership:
Parent-Subsidiary: The company owns 51% to 100% of the U.S. Company.
Sister Company: the company and the U.S. company are owned by one (1) common owner, who owns 50% to 100% of each company.
Does the Company and the U.S. Company Have to Remain Operational During the L-1A and EB-1C Process?
Yes. Under both the L-1A and the EB-1C regulations, the U.S. Petitioner company and the foreign company remain operational during the validity of the visa process. L-1A visas can be granted for a total of 7 years for managers and executives. For EB-1C petitions, the USCIS may require that companies demonstrate their continued business operations until the green card is approved.
Does the Company have to Engage in the Same Business as the U.S. Company?
No. The Company may come to the U.S. to expand into other industries.
Minimum Number of Employees for the Company and U.S. Company?
U.S. immigration law does not specify a minimum number of employees. In our experience, we recommend at least 7 to 10 employees in the company and also at least 7 to 10 employees in the U.S. company. If only 7 to 10 employees, the employees must be: (1) salaried full-time workers and (2) mostly managers or professionals. Job descriptions are required for each employee of a small company. The larger the number of employees the company has, the stronger the facts for an L-1A or EB-1C visa petition.
Example of Strong Facts: Applicant is President of production company with 50+ employees, some of whom are managers and professionals. Recommendation: go forward.
Example of Average Facts: Applicant is owner of an advertising and marketing company with 10 employees, most of whom are skilled professionals (marketing analysts, graphic designers, web designers). Recommendation: go forward.
Example of Average Facts: Applicant is President of a real estate development company, with 10 employees and 50 independent contractors. The 10 employees include financial managers, accountants and civil engineers. Recommendation: go forward.
Example of Weak Facts: Applicant owns a successful beauty salon, with 20 part-time employees. Applicant manages the hair salon personally, and has no assistant managers or professionals working for the company. Recommendation: either hire at least two (2) assistant full-time managers and one (1) accountant, or do not go forward.
What is the minimum amount of financial profits for the company?
There is no statutory minimum concerning company profits. The company must be sustainable and continue in regular business operations for the entire L-1A / EB-1C period. Profit levels should show that company can properly pay salary for its employees.
Is it Permissible for the Company to Report a Loss in Recent Years?
The USCIS may consider the merits of each specific case separately. For example, if the organization is able to prove that it retained sufficient profits from earlier years, then sustainable losses in more recent years may be allowable. Likewise, a business that has suffered a series of loss-making years may still qualify for L-1A or EB-1C, if it can prove that a parent company is willing to provide funds to the sister company to ensure its sustainability. The business should be prepared to explain the cause of such losses.
Does the Company Have to Prove Lawful Source of Company Funds?
Not at present. The EB-1C and L-1A statutes do not mention lawful source of funds, unlike the EB-5 Alien Entrepreneur category. However, USCIS has the regulatory authority to increase evidentiary requirements to ensure the integrity of the program. Companies should be prepared to provide documentation of sufficient business income to meet the investment amount and salary requirements.
Which Company Must Pay the Applicant’s Salary?
The L-1A and EB-1C categories have different rules about who may pay the applicant’s salary.
L-1A: Either the U.S. company or the foreign company may pay the applicant’s salary. The paying entity must provide documents to prove payment of salary. The amount of salary must be sufficient to support a managerial or executive position, and to remove any doubt that the applicant will work full-time (and will not be required to seek additional employment with other U.S. entities to pay for their stay in the U.S.). For example, at least US$60,000+ per year in salary.
EB-1C: The USCIS requires the U.S. company to pay the salary of the applicant after the green card is approved. Petitioner must demonstrate, starting from the day that the visa petition is filed with USCIS, that it has the ability to pay the future salary offered to the executive or manager. If the immigration authorities issue Requests for Further Evidence (“RFEs”), these will delay case adjudication and may extend the period of time that the Petitioner must prove ability to pay.
Detailed financial documents and tax records of the U.S. company are used to prove ability to pay.
When remitting U.S. Dollars, what should the business be aware of?
In L-1A/EB-1C cases, the investment funds typically issue from a business organization, rather than an individual. Corporate funds transactions are subject to different regulations regarding currency exchange and foreign remittance. Each business should confer with a qualified financial expert to properly comply with the corporate requirements of currency exchange regulations, including:
Whether the business needs to open a bank account and/or register with the State Administration for Foreign Exchange (“SAFE”).
Whether the business must use its own corporate funds rather than using borrowed funds or funds of private individuals.
Whether the business is limited so that its investment amount in the foreign entity cannot exceed 30% of the company’s shareholder equity.
Whether the business is subject to PBOC/SAFE review of each currency exchange transaction.
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