Intracompany Transferee

Overview of the L-1A Visa

By Davidson & Seseri, LLC

The L-1 visa allows individuals to transfer between a foreign company and a U.S. company that is related as a parent, branch, affiliate or a subsidiary thereof.

The acceptable relationships are defined as follows:

  1. “Parent” means a firm, corporation, or other legal entity that has subsidiaries.
  2. “Branch” means an operating division or office of the same organization housed in a different location.
  3. “Subsidiary” means a firm, corporation, or other legal entity that a parent owns & controls.
  4. “Affiliate” means one of two subsidiaries, both of which are owned and controlled by the same parent or individual; or, one of two legal entities and controlled by the same group of individuals owning and controlling approximately the same share or proportion of the entities.

The proof that the U.S. and foreign company counterpart are related in one of the three acceptable relationships, is evidenced by proof of common ownership of 50% or more, which in larger companies may be in the form of the most recent annual report, but in smaller companies is often documented by establishing the types of business entity formed and their ownership through production of stock certificates or partnership agreements.   

Additionally, the employer must be “doing business” in the United States and abroad during the L-1 period of validity.  This means the regular, systematic and continuous provision of goods and/or services by the qualifying organization and does not include the mere presence of an agent or office in the United States or abroad.  In order to prove that the company[ies] are doing business in the United States and abroad, company income tax returns (US and foreign), and payroll records (US and foreign) and similar type evidence are often included in the filing.  

 

  • THE QUALIFICATIONS OF THE FOREIGN EMPLOYEE

In order to be eligible for an L-1 visa, the foreign employee must has been employed abroad  with the related organization for one continuous year within three years before the application for admission, in one of three qualifying categories listed below:

  1. “Manager of the organization, or a department, subdivision or essential function of the organization; has the authority to hire and fire; and if a first line supervisor, supervises employees who possess professional qualifications.  Normally this function must be more than 50% of the individuals’ job duties while in the United States, although USCIS exercises greater latitude with such applications if it is a start-up enterprise.
  2. “Executive” directs the management of the organization or major component of the organization; establishes the goals and policies for the organization; and exercises wide latitude concerning discretionary determinations that are significant to the organization.
  3. “Specialized Knowledge” must be possessed by an individual of the petitioning organization’s product, service, research, equipment, techniques, management or other interests and its application in the international markets, or an advanced level of knowledge or expertise in the organization’s processes or procedures.

The employee who transfers to the United States in any of these three categories must work primarily as a manager, executive or as an individual possessing specialized knowledge.  The term “primarily” means 50 percent or more of the time.

The duties the employee will perform in the United States must be described in sufficient detail to fit within one of these categories. 

The L visa is issued for a three-year period subject to being extended up to seven years for executives or managers and five years for individuals possessing “specialized knowledge.”  In the case of a start-up company, USCIS normally grants the initial L visa for one year subject to extensions if the growth of the U.S. entity is sufficient to support an L-1 manager in the United States or an individual with specialized knowledge.

 

  • DOCUMENTS

The list below is intended for L-1 transfers from a foreign company to the U.S. related enterprise.  The list is a generic one that will vary depending upon the type of relationship existing between the U.S. and foreign company (subsidiary, parent, branch or affiliate) and if the U.S. entity is a start-up or an existing U.S. company.

Documents regarding USA Company

  1. Lease –
  2. State filing for entity
  3. Employee Chart (if transfer is for a managerial or executive position)
  4. Bank Statements
  5. Wire transfers from Foreign Company
  6. W-2 Statements for all employees (small companies)
  7. Last Quarterly filings for Employee taxes
  8. I-9s completed for current employees (small companies)
  9. Last Income 1120 US Income tax return 
  10. Proof of ownership & control (see description above)
  11. Contracts for business if new enterprise
  12. Business Plan, if start-up (that includes description of company, market, projections for growth in revenue/gross & net income and staff over a five year period.

Documents regarding Foreign Company

  1. Lease
  1. 14.State filing for entity establishing ongoing entity
  2. Employee Chart (if transfer is for a managerial or executive position)
  3. Bank Statements (small companies)
  4. Pay Roll for all employees (small companies)
  5. Last 2 Company Income tax returns or audited financial statements
  6. May require proof of ownership and control if the U.S. company is the parent of the foreign company.

Documents regarding the Transferee

  1. Face page of Passport
  2. Resume
  3. Evidence of employment with Foreign Company for at least one year in the prior three years

If the U.S. and foreign companies are affiliated, the L-1 documentation will also require proof that the third-party owner has ownership and control of both the U.S. and foreign entities.

The L-1A petition also includes a detailed letter that describes the U.S. duties of the manager or executive being transferred. These duties must be broken down into percentages of daily tasks that overall reflect the majority of assignments are managerial or executive. 

Finally, the lists above are examples of documents that are normally filed with L-1 petition.  In most cases, there is some to considerable variance from this list as to what is available and what will be filed.      

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