With the unfortunate constraints being placed on individuals seeking to immigrate to the United States from India or China in the EB-2 or EB-3 due to the retrogression in priority dates, more and more the L-1A category visa is becoming an attractive alternative to those that qualify because of the relative ease of qualifications on EB1c. The L-1A is an intracompany transferee visa, that is, it is a visa generally available to companies that seek to have an executive or manager in its organization sent to the United States to continue to work in a managerial or executive capacity for the organization. The situation may also be that the individual seeks to enter the United States to continue to work for the same employer that they work for abroad or for a parent company, branch, affiliate or subsidiary of the company they work for abroad in a managerial or executive capacity.

Work 1 of the past 3 years preceding submission of the application outside the United States

The first major hurdle to check off in determining whether you qualify for the L-1A intracompany transferee visa is to answer the question; Have I worked 1 of the past 3 years (preceding submission of the application) outside of the United States? If yes, you are still alive. Now we must look toward the nature of the work that you were doing during this period and the role you will be fulfilling upon arrival (or change of status) in the United States.

Working in a managerial or executive capacity

All too often these two categories are conflated. To properly understand whether one qualifies it is best to look at managerial capacity and executive capacity as two separate fields.

Managerial capacity

One works in a managerial capacity if she or he manages the organization, manages a department in the organization, manages a subdivision of a department within the organization or one may manage an essential function or component of the business. Such a person may establish his or her managerial capacity by demonstrating that she or he supervises and controls the work of other supervisory, professional, or managerial employees. This means that the individual does not establish oneself as serving in a managerial capacity by merely having many employees report to him or her, rather the key criteria is that the individuals that are being managed are not first line employees; they themselves must be supervisors or professionals (doctors, lawyers, engineers, etc.).

The other way that one can establish managerial capacity is to demonstrate that you manage “an essential function within the organization, or a department or subdivision of the organization.” One good example of this is the organization’s Director of Business Development. Often with tech related organizations it is extremely beneficial to establish a United States based sales office; therefore it is prudent to move the person in charge of the sales function of the business, i.e., the Director of Business Development, to the United States.

Executive capacity

One works in an executive capacity if she or he directs the management of the organization or a major component or function of the organization. This is an individual that is in the top echelon of the company. She or he establishes the goals and policies of the organization, exercises wide latitude in discretionary decision making; and receives only general supervision or direction from even higher level executives, the board of the company, or shareholders. Basically this individuals can make decisions without much, if any, oversight. The best example of executive capacity is the company’s CEO or chairman.

Can be part-time basis

One important note to consider in terms of the benefit of the L-1A visa is that the executive or manager can work on a part time basis. If the chairman for instance is only tasked with general oversight of the company that individual probably does not work full time and may still qualify for the intra-company transferee visa.

Compensation

Employment in a managerial or executive capacity does not depend on the existence of a salary. A non salaried chairman can qualify for L-1A. On the other hand, there have been cases denied as a result of the salary not being commensurate with the managerial capacity of the employment.

Having a Qualifying Organizational Relationship

In most cases this will look like a parent/subsidiary relationship. For example the parent company existing in India has a subsidiary company in the United States or as is often the case with our clients is seeking to organize a new subsidiary company in the United States. The qualifying relationship can be demonstrated through stock ownership or some other documented means.

Joint ventures can also be used in an L-1A scenario; here, the overseas company may own less than a majority stake in the United States company however this is overcome by the control factor. Control of the company is sufficient to qualify the relationship.

While contractual, franchise, licensing agreements are insufficient, some factors to consider in establishing the qualified organizational relationship are: a common name, regular sharing or exchanging of personnel, cross directorship, sharing of technical, financial and research skills and size and general recognition of the organization.

Nature and Size of the Company

While there is no size requirement, size matters. In situations where there is a relatively small company more detailed evidence is often required and a higher level of scrutiny may apply.

New Office

Where the L1-A petition is based upon the overseas company establishing a new office in the United States, one must consider the following; (1) acquire and secure sufficient physical premises for the office, and (2) make sure that you can establish that within 1 year the intended United States operation will support an executive or management position. To establish this latter point be prepared to provide the proposed nature of the office, describing the scope of the entity, its organizational structure and financial goals. One must also provide the size of the investment in the United States and demonstrate the financial ability of the foreign entity to pay for the US activity.

Organizational Structure

Supplying the organizational structure and business plan is key to submitting a successful petition. The United States Customs and Immigration Service (USCIS) will look for a business plan that projects specific staffing levels by the end of the first year. The approval the USCIS will provide will be for 1 year and it will be extended upon proving that the business of the company is active and operating. In determining whether to approve the extension of the L-1A USCIS looks to the “number of employees, significant growth in cash flow and the presence of significant customers and clientle.”

Contact an attorney

The first step for a company or an individual seeking to enter the United States is to contact an attorney that understands the intricacies of a successful L-1A process. This article merely scratches the surface of the areas one would need to provide input in when forming an L-1A visa package. Immi Law Help with the help of the Shah Peerally Law Group  have been successful handling a wide range of diverse L-1A and EB1C petitions; from some very large companies to some relatively small ones. No matter the size or your question or concern feel free to contact our office at (510) 742 5887  to set up a consultation so that we may advise you about your specific situation.

This article is provided for education purposes only. One should not act or fail to act solely based on the contents of this article.