Intra-company transfers involve the transfer of non-American citizen or non-permanent resident employees from a company outside the US to a parent, subsidiary, affiliate or US branch of a US company located in the United States. As the employee is being transferred to the US office it is the US office company which makes the application (petition). The employee, must have been employed with the foreign company for a minimum of 1 year, and have worked OUTSIDE the US for a minimum of 1 year of the past 3 years prior to the application.
Under NAFTA Canadians have the right to apply for an L-1 at the port of entry as they seek entry to the US or alternately by submitting the application to the applicable Service Center. Non-Canadian citizens must apply to the Service Center and confirm their L-1 status by obtaining an L-1 visa at a US Consulate or Embassy with jurisdiction over their place of residence or country of citizenship.
L-1 has 2 categories
- executive/management (L1-A) or
- specialized knowledge (L1-B)
There are specific regulatory requirements which the US position needs to meet in order to qualify as a manager or executive. For example, one does not necessarily need to manage other employees if he/she is managing, an “essential function” of the company. If a manager is managing people, the people reporting to the manager should be professionals – front-line supervisors are usually not considered managers by L1A standards. L1-A visas are valid for up to 7 years which is calculated according to regulatory formulae.
L-1Bs are employees who, through in-house training and/or experience with the company, have obtained specialized knowledge of the company’s procedures, technology, equipment, products and whose expertise is required by the US company. L1-B visas are valid for up to 5 years.
Dependants of L-1 holders are entitled to L-2 status.* This includes a spouse-by-marriage and children under 21 of the L-1. Common-law partners are not recognized as dependants for immigration purposes.
Dependant spouses of L-1s may apply for an EAD (Employment Authorization Document) at a CIS Service Center. This is an open work permit with the same duration as the L-1. Visa exempt dependant spouses and children may apply at the port of entry for L-2 status which allows them to live and the children to attend school in the US.
New Office Intra-company Transfers
For companies outside the US who are interested in expanding their operations into the US the L-1 is an option. L-1s for US offices which have been in operation for less than 1 year are granted for 1 year, after which time the company must show evidence of operations in the US for the L-1 to renew.
Petitioners may apply for blanket L1 petitions at US consulates outside the United States if:
– US and each of the non-US companies are engaged in commercial trade or services;
– US company has been doing business in the United States for 1 year or more;
– US company has 3 or more domestic and foreign branches, subsidiaries or affiliates; and
– US and non-US companies have obtained approval of petitions for at least 10 L1A managers, executives or L1B specialized knowledge professionals during the previous 12 months OR have US subsidiaries or affiliates with combined annual sales of at least $25 million OR have a US work force of at least 1000 employees**
** On January 16, 2002, President George W. Bush signed bill H.R. 2278 into law. Under this law, it now provides that in the case of an alien seeking admission as an L1, the required one-year period of continuous employment is reduced to six months if the importing employer has filed a blanket petition and met the requirements for expedited processing of aliens covered under the petition.
Advantages of L-1
1. L-1 has a dual intent component. This means an L-1 can be working and an applicant for an immigrant visa simultaneously.
2. L-1 spouses are eligible for open work permits by virtue only of their marriage to the L-1. This is an important consideration in family planning where both spouses have a career and/or the need for a spousal income for economic survival.
3. L-1A and L-1B are usually issued initially for 3 years and in 2 year increments after that. Total duration for L-1A is 7 years and 5 years for an L-1B. There are circumstances in which L-1s can be renewed indefinitely.
4. L-1A can be converted to permanent residence without a labor certification. This was considered a major advantage. In practice the standards for permanent resident adjudications are more stringent than for L-1 adjudications. This practice has been exacerbated in the last several years so that labor certification may be less risky than the straight conversion from L-1A to permanent residence.
5. The raising of the bar at CIS for permanent residence has had an effect on L-1A and L-1B adjudications. There are very high rates of refusal for both categories which are not legally justifiable.
6. The virus has infected CIS policy as reflected in CBP L-1 adjudication under NAFTA. CIS unilaterally revoked 30 years of policy and practice on or about April 2019 by refusing to adjudicate L-1A and L-1B renewals at ports of entry, requiring that they be adjudicated by CIS. This effectively negated 30 years of L-1 accumulated experience by CBP who have the benefit of personally interviewing every applicant for admission. CIS have never met an L-1 because their adjudications are based on paper alone. DOS interviews applicants. CIS does not. 1 step forward for CIS. 1 giant step backward for US immigration policy.