The L1 visa requirements must be fulfilled to achieve an L1 visa. An L1 visa allows a U.S. employer to transfer an executive or manager from one of its affiliated foreign offices to one of its offices in the U.S. An L1 visa also lets a foreign business send an executive or manager to set up a business in the U.S. An L1 visa is often referred to as a visa L1 or visa L1A USA, an L-1 visa, an L visa, and an L1a visa. These are basically all the same visa. The employer (the U.S. business) must file a Form I-129 and fee on behalf of the employee (the beneficiary). Miami International Attorneys breaks down the requirements to obtain an L1 visa as follows:
(1) The qualifying relationship between the U.S. business and the non-U.S. businesses;
(2) The qualifying employer-employee relationship;
(3) The qualifying work role of the beneficiary (capacity);
(4) The beneficiary’s qualifying sufficient time working at the non-U.S. business; and
(5) The qualifying physical workspace secured in the U.S.
(1) The qualifying relationship between the U.S. and non-U.S. businesses:
The petitioning U.S. entity must have a qualifying relationship with your entity abroad.
The new U.S. office must have a corporate relationship with your foreign entity abroad where you have been employed as a manager, executive, or worker with specialized knowledge. This means that the new U.S. office must be a parent, affiliate, subsidiary, or branch of the foreign entity, and that both the U.S. office and the foreign entity must continue to share common ownership and control.
Evidence of General Qualifying Relationship:
The following is good evidence that the new U.S. business has a qualifying relationship with a foreign company (we note that the more evidence you provide, the better):
(a) The non-U.S. business’s articles of incorporation and the U.S. business’s articles of incorporation, showing common ownership of the U.S. and non-U.S. businesses;
(b) The non-U.S. business’s annual reports describing the corporate structure (and showing the placement of the U.S. business within that structure);
(c) The non-U.S. business’s licenses or other documents showing common ownership of the U.S. business;
(d) The non-U.S. business’s contracts or other documents detailing the affiliate relationship with the U.S. business;
(e) The non-U.S. business’s corporate filings and the U.S. business’s corporate filings describing the corporate relationship;
(f) The non-U.S. business’s other documents showing ownership and control over the U.S. and foreign entities, including stock purchase agreements, voting rights agreements, capitalization tables, term sheets, etc.—in other words, corporate documents showing the corporate relationship between the non-U.S. business and the U.S. business.
Evidence of Subsidiary Relationship:
The key factor in a subsidiary relationship is control. The USCIS defines subsidiary as a an entity of which a parent: (i) owns, directly or indirectly, more than half the entity and controls the entity; or (ii) owns, directly or indirectly, half the entity and controls the entity; or (iii) owns, directly or indirectly, 50% of a 50-50 joint venture and has equal control and veto power over the entity; or (iv) owns, directly or indirectly, less than half of the entity, but in fact controls the entity. If you are filing your petition as a subsidiary, you must provide a detailed list of the owners of the non-U.S. businesses and the U.S. businesses showing percentage of ownership. This detailed list must have supporting documentation.
Evidence of Affiliate Relationship:
The USCIS defines affiliates as one of two subsidiaries owned and controlled by the same parent or individual, or the same group of individuals, each owning and controlling the same share of proportion of each entity. Affiliate companies must provide a detailed list of the owners of the non-U.S. and U.S. businesses, including percentage of ownership. This detailed list must have supporting documentation.
Evidence of Buyout to Create Relationship:
If you are purchasing an existing business to create the necessary corporate relationship, then you must provide a copy of your stock purchase agreement an any other relevant documentation showing the buyout.
(2) The qualifying employer-employee relationship
The petitioning non-U.S. business must show that both the employer and employee qualify for the L1. The employer is the U.S. business. The employee is the beneficiary travelling to the U.S. for work.
The Qualifying Employer
A qualifying employer U.S. business must (i) have a qualifying relationship with a non-U.S. company (see qualifying relationship, above); and (ii) currently be or will be doing business as an employer in the U.S. and in at least one other country directly or through a qualifying organization for the duration of the beneficiary’s stay in the U.S. as an L1. The U.S. business must be viable, though not necessary engaged in international trade.
The key factor is that the U.S. business is actually doing business, which means regular, systematic, and continuous provision of goods and/or services by a qualifying organization. Doing business does not include the mere presence of an agent or office of the qualifying organization in the U.S and outside the U.S.
The Qualifying Employee
A qualifying employee beneficiary of the U.S. business must (i) generally have been working for a qualifying organization abroad for 1 continuous year within the 3 years immediately preceding his or her admission to the U.S.; and (ii) be seeking to enter the U.S. to provide service in an executive or managerial capacity for a branch of the same employer or one of its qualifying organizations (see qualifying relationship, above).
Executive Capacity and Managerial Capacity
The USCIS treats executive capacity as the employee’s ability to make decisions of wide latitude without much oversight. The USCIS treats managerial capacity as the ability of the employee to (i) supervise and control the work of professional employees and (ii) to manage the organization, or a department, subdivision, function, or component of the organization, or (iii) to manage an essential function of the organization at a high level, without direct supervision of others.
(3) The qualifying work role of the beneficiary (capacity):
The beneficiary worker must have been employed as a manager, executive, or worker with specialized knowledge at the non-U.S. business. You must submit evidence to demonstrate that your non-U.S. employment was in a managerial, executive, or specialized knowledge capacity. Regarding specialized knowledge, the USCIS requires your business knowledge to be special or of an advanced level; however, the USCIS does not require your knowledge to be unique or proprietary, nor is there a U.S. labor market test required before you can be admitted as an L1 specialized knowledge employee.
Evidence of Qualifying Capacity:
The following is good evidence that your overseas employment was in a qualifying capacity (we note that the more evidence you provide, the better):
(a) The non-U.S. business’s organization charts showing your position;
(b) The non-U.S. business’s documents or patents showing the non-U.S. business’s technology, products, or services that are based on your work (your name should be referenced in these documents);
(c) The non-U.S. business’s performance reviews of your work at the non-U.S. business;
(d) Documents of loans and financing on behalf of the non-U.S. business, with your name on them;
(e) The non-U.S. business’s own organizational job descriptions for your position and the positions that reported above and below you;
(f) Your own resume describing your job accomplishments.
(4) The qualifying sufficient time working at a non-U.S. business:
The beneficiary worker must have been employed at the non-U.S. business for 1 out of the last 3 years.
Evidence of Years Abroad:
The following is good evidence that you have worked the required amount of time abroad (we note that the more evidence you provide, the better):
(a) The non-U.S. business’s pay stubs reflecting payment for work at the non-U.S. business during the required time periods;
(b) The non-U.S. business’s payroll records reflecting payment for work at the non-U.S. business during the required time periods;
(c) Your own tax returns from the non-U.S. country reflecting payment for work at the non-U.S. business during the required time periods;
(d) The non-U.S. business’s documents reflecting your work product at the non-U.S. business during the required time periods.
(5) The qualifying physical workspace secured in the U.S.:
The petitioner must have leased sufficient space to do business in the U.S. While the amount of physical workspace may vary from business to business, the petitioner must show that an appropriate space is secured by lease, purchase, incubator, or otherwise.
Evidence of Sufficient Workspace:
The following is good evidence that you have obtained sufficient workspace (we note that the more evidence you provide, the better):
(a) The business’s signed lease agreement;
(b) The business’s mortgages, deeds, or other proof of real estate purchase;
(c) The business’s business plan, marketing materials, or other descriptions connecting the activity of the business with the space acquired (this is necessary to show that the workspace is appropriate to the business plan);
(d) A written explanation of how the workspace acquired is sufficient for your particular business.
Evidence of Incubator and New Office Space:
If you have not leased or purchased your workspace, then you must specifically explain the type of space you secured and provide additional evidence of your eligibility, including by an agreement from the incubator provider confirming that you are using the incubator space. If you are filing for a new office, you must provide the formal business plan (with executive summary) showing the size of the U.S. investment and your ability to commence doing business in the U.S.
If you have questions on the interpretation of the immigration laws governing adjustment of status, you should contact our immigration lawyers and abogados de inmigracion. We can give you personal and immediate immigration help and legal aid from an immigration lawyer.
Miami International Attorneys, P.L.
P.O. Box 191057
Miami Beach, FL 33119