L-1 Non-immigrant
visas are one of the most useful tools available to international companies
needing to bring foreign employees to the U.S. An alien may be admitted
to the U.S. in L-1 status for the period of time required by an employer,
up to a maximum initial period of stay of up to three, five, or seven
years, depending on the characterization of the employee. Employers
who can document intermittent U.S. employment in L-1 status for an alien
can have new L-1petitions approved indefinitely for the alien. A special
one-year initial period of stay applies when the alien is coming to
the U.S. to open a new office. In that case an extension must be filed
within the first year, during which the company must have been "doing
business" both in the US and abroad.
"Doing business" requires activity, not just the registration
of a business or office. "Doing business," means the regular,
systematic and continuous provision of goods and/or services. It does
not include the mere presence of the agent or office abroad, if no actual
business is being conducted. The organization must have employees and
be providing goods or services on a regular basis.
The U.S. employer must file a petition with the Immigration service
to obtain an L-1 visa. Once the petition is approved, it is sent to
an U.S. Consulate where the alien can obtain an L-1 visa to enter the
U.S. If the alien is already in the U.S., his or her status must be
changed to the L-1 category. There are also blanket provision procedures
by which employers can receive approval permitting them to issue certificates
of eligibility for L-1 visas directly to their employees. For certain
"priority" managers and executives, the L-1 visa may provide
a vehicle to permanent resident status in the U.S.
The basic requirements for obtaining L-1 status are as follows:
(1) the employee must have worked abroad for the overseas company for
a continuous period
of one year in the preceding three years,
(2) the company for which the employee has worked for a year abroad
must be related to the
U.S. company in a specific manner,
(3) the company must be one qualifying organization (one that is doing
business in the U.S.
and one other country during the whole
period of the transfer),
(4) the employee to be transferred must have been employed abroad as
an "executive" or
"manager," or in a position involving
"specialized knowledge,"
(5) the employee must be coming to the U.S. to fill an executive, managerial,
or specialized
knowledge position,
(6) the employee must qualify for the position based on his or her prior
education and
experience, AND
(7) L-1 alien must intend to depart the U.S. at the end of the authorized
stay (including
extensions), however it is permissible
to pursue permanent residence at the same time.
The One-Year of Employment Abroad Requirement
The one-year requirement for employment abroad must be full-time, and
a longer period of half-time employment cannot be aggregated to meet
the required amount of time. One can only use a combination of part-time
employment to meet the one-year continuous requirement if part-time
work is for affiliated companies (i.e. parent, subsidiary, branch).
An actual employment relationship must have existed, so that an independent
contractor relationship is not sufficient.
An owner cannot be considered an "employee" for L-1 purposes
if there is no legal distinction between the owner and the employing
entity. For instance, if an alien were only a partner in a business,
he would not qualify as an employee, as opposed to an employee of the
partnership, who would qualify. However, a majority or substantial stockholder
of either the U.S. or the foreign corporation can be considered as an
employee. The law does not require that the alien's current foreign
employer and the petitioning entity be related, so long as the alien
was employed by the related foreign entity for a period of one-year
during the three-year period. Documentation of the one-year requirement
should be in the form of a letter from the foreign employer, according
to the revised I-129, however the INS rules allow for an authorized
official of the U.S. entity to provide such documentation. Until this
discrepancy is resolved, employers might find that they are required
to document the employee's work history through a letter from the overseas
employer.
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An amended petition
must be filed with the INS where there are changes in the approved qualifying
relationships, when additional qualifying organizations are to be included,
and if any information arises which would affect the beneficiary's employment.
Changes requiring an amendment to the petition include:
1) any significant changes in the beneficiary's duties
2) a transfer occurs from one company to another in the same organization
where the beneficiary
becomes an employee of a new company
3) any changes in ownership
4) merger
Change of Status to
the L-1 Category
If an alien who qualifies
for L-1 status is already present in the U.S. on a different not-immigrant
visa, they may change to L-1 status by filing the same I-129 petition
and L supplement. This frequently happens with the B-1 visa category
(business visitor). Family members of the L-1 alien can change status
by submitting Form I-539.
When completing the I-129 and L Supplement in order to change status,
in Part 2 of the form, Boxes 2(a) and 4(b) must be checked. When the
alien is already in the U.S., the information in Part 3 must be completed.
In Part 4, check "yes" for item "e" if an I-539
form will be filed simultaneously with the I-129, for family members.
Because of the changes
made by the 1990 Immigration and Nationality Act, it is increasingly
important for employers to classify their employees according to these
capacities. Different limits on the length of an employee's stay are
permitted for each of the categories:
Executives - 7 years
Managers - 7 years
Specialized Knowledge - 5 years
Also, Managers and Executives are considered "priority workers"
and because of this classification, will be allowed a faster track to
permanent resident status, unavailable to employees in the "specialized
knowledge" category.
The definitions of the three classifications are as follows:
Executive
* those whose primary duties are to direct the management of an organization,
establish goals
and policies, have discretion in decision-making,
and receive minimal direction from
higher-level executives
* "vice president," "controller," etc. are titles
which should generally not have a problem
qualifying for L-1 executive status
* the executive must generally supervise either other persons, or a
function (if the number of
supervised personnel is an issue in making an L-1 determination,
the size of the staff must be
considered relative to the business' needs and their stage of
development)
Manager
* primary duties are to direct the organization itself, a department
of the organization, or a
function;
* has the authority to hire or fire or make such recommendations (unless
he or she manages a
function only);
* has discretion in decision-making concerning day-to-day operations;
* specifically excluded from this category are first-line supervisors
unless those supervised are
themselves managers or professional employees
* if the number of supervised personnel is an issue in making an L-1
determination, the size of
the staff must be considered relative to the business'
needs and their stage of development
In determining whether a person who will manage a function qualifies
for L-1 status as an
executive or a manager, the following will be considered:
* the executive/manager category does NOT include those whose primary
function is to do the
tasks required to produce the product or provide the services
(must spend the "majority" of
their time performing managerial duties)
* Two factors used to determine the above:
* Whether the U.S. company is employing or intends to employ others
to perform the tasks of
production or service
* Whether the person's primary duties are managerial or operational
* The complexity of the organization will be reviewed to determine whether
the position is a
senior position within the company
* If the employer wishes to hire an alien to fill an additional managerial
position, they must justify
the need for such a position and show that the complexity
of the organization will support an
additional executive.
* The nature of the function to be managed will be examined. The transferred
employee must be
managing an important function, measured through its economic
value and its importance to
the end product or service provided by the enterprise.
* The employer must be seen to have the financial ability to provide
an adequate salary to both
the executive in question and any other employees
necessary to perform the company's
function (a salary as low as $50,000 was found acceptable
for a small entity).
* The employer must submit documenting evidence of the L-1 eligibility
of the proposed
employee, including:
* A detailed description of duties performed abroad, and duties to be
performed in the U.S.,
including specific projects, when possible (merely incorporating
the statutory definitions of "manager" and "executive"
will be given little weight).
* Financial data establishing employer's ability to employ the executive
and others necessary
to producing the product or service
* A description of the U.S. and foreign companies' organizational structures
and a description of
the duties of the positions
* A description of the function of the proposed employee and that function's
importance and
value to the company
* Documentation of the availability of other workers to fulfill the
operational requirements of the
organization (this is at issue because the determination needs
to be made that the person who
will manage a function is actually an executive or manager)
Specialized Knowledge
* An alien is considered to have "specialized knowledge" if
the alien:
* Has a special knowledge of the company product and its application
in international markets, OR
* Has an advanced level of knowledge of the processes (manufacturing
process, production
process, etc) and procedures of the company
* The statutory definition of specialized knowledge is especially useful
for those aliens coming
to the U.S. to run a new office of a foreign
employer, sine the employee was placed in the
new office, based on her knowledge of the employer's
product , procedures and operations
Characteristics of employees with "special knowledge" include:
1) possesses knowledge that is valuable to the employer's competitiveness
in the market place
2) uniquely qualified to contribute to the U.S. employer's knowledge
of foreign operating conditions
3) has been utilized as a key employee abroad and has been given significant
assignments
which have enhanced the employer's productivity,
competitiveness image or financial
position AND
4) possesses knowledge which can be gained only through extensive prior
experience with that
employer
This employee is not simply a skilled worker. Rather, the employee is
someone whose advanced level of expertise and proprietary knowledge
of the employer organization's product, service, research, equipment,
techniques, management or other activity is not readily available in
the U.S. labor market.
If a petition is denied,
the company will be notified of the reasons for the denial, together
with a right to appeal. An appeal is made on Form I-290A, which is sent
to the company with the decision. A filing fee of $110 is required and
the appeal will be decided within sixty to ninety days. Status inquiries
for cases that are still pending after ninety days can be received by
calling (202) 786-4256. Also, a motion to reopen (to reconsider based
upon new evidence) or a motion to reconsider (requesting review of denial
based on legal arguments) can be made and submitted to the Immigration
and Naturalization Service.
Documents
Required for L-1 Status
L-1 petitions must include the following papers:
1) Form I-129 and
L Supplement - completed in duplicate (with original signature on both
copies)
2) Company Letter - in duplicate (a second copy of the original is sufficient)
3) Supporting Documentation (in duplicate) - don't forget to submit
certified translations of foreign
language documents; copies of original documents
may be submitted without certification
4) Filing Fee of $110.00. The fee can be in the form of a personal or
corporate check or money
order made out to the "Immigration and Naturalization
Service."
5) Form G-28, Notice of Appearance, when the employer is represented
by counsel
Documents Required for the L-1 Visa:
The following documents must
be presented to the U.S. Consulate in the applicant's country to obtain
an L-1 visa:
1) Form OF-156 - the standard nonimmigrant visa application form. A
separate form is required
for each family member.
2) Form I-797 from the Immigration and Naturalization Service
3) A full copy of the L-1 petition and supporting documents filed with
the INS
4) Passport of the visa applicant, and those of each family member
5) Photograph of the visa applicant and each family member
6) Application Fee (the fee amount differs for nationals of each country
depending on reciprocity
for U.S. citizens in seeking entry to
those countries
7) Machine readable visa fee of $45
Documents Required for
an L extension of stay:
The following papers must
be submitted for an L extension of stay:
1) Form I-129 and L supplement - the petition form for nonimmigrant
work categories
2) Copy of the approval notice of the initial petition (INS form I-797
or I-171C)
3) Company letter in support of the extension request
4) Copy of form I-94 for the L alien (original does not need to be submitted)
5) Filing Fee of $110.00
6) Form I-539 including all family members of the L-1 alien
7) Copy of Form I-94 for each family member (original does not need
to be submitted)
8) Filing Fee of $120
The following papers must
be submitted for an L-1 Blanket Petition:
1) Form I-129 and L supplement
(in duplicate)
- there is no place to put "blanket petition,"
but the INS directs that the employer
write "LZ" in Item 1, Part 2 and check
Box 4.a. in Part 2)
-Item 5 of Part 2 should reflect "1" worker,
since the computer will not accept "0."
-on the top portion of the Supplement, the "blanket
petition" box should be checked
-the employer should not complete Section 1 since
an individual petition is not being filed
2) Documentation of the Company's Qualification for the Blanket Petition
Program
-the company must submit evidence on the following
points (in duplicate):
* all branches, affiliates, subsidiaries and the
parent company are engaged in commercial trade or services and
are actively doing business at present and will continue to do business
indefinitely (best evidence: annual
report and 10-K statement of the U.S. company or parent
company abroad or other financial
data statements if these two forms are unavailable)
* the U.S. office has been doing business for one
year or more
* the petitioner has three or more components around
the world
* the petitioner has made at least TEN transfers
of executive, managerial, or specialized
knowledge professional personnel
in the past year
* the U.S. components have combined sales of at least
$25 million in the past year
* the U.S. components have at least 1,000 employees
3) Documentation regarding the corporate relationships within the international
organizations (in
duplicate)
4) Company letter summarizing the company's case for the L-1 blanket
petition program
(induplicate)
5) Filing Fee of $110
The Alien to be transferred
must take the following documentation to the U.S. Consulate:
1) INS Form I-129S (the certificate
of eligibility issued by the company to the alien)
2) Copies of Form I-797 (the blanket petition approval notice)
3) Letter of the employer describing the duties of the alien abroad,
the job duties to be performed
in the U.S. and the alien's employment history
with the employer
4) Supporting documentation regarding the alien's duties abroad, a record
of the one year
employment abroad for the one year preceding transfer,
by the company and the alien's
qualifications for the U.S. position (the same documentation
as would be required to support
an individual petition).
Does it matter
on whose payroll the L-1 employee remains?
No, the L-1 employee
can remain on the foreign affiliate's payroll even after being transferred
to the U.S. ; however, she must be employed by the U.S. Company, and
cannot be working directly for the foreign affiliate. This means that
the employee can be paid by the foreign company, but at the same time,
must be an employee of the U.S. Company. The L-1 employee can also be
placed on the payroll of the U.S. affiliate. For example, if a foreign
company mans a project in the U.S. with a workforce it sends to the
U.S. from a foreign country, these employees are not eligible for L-1
visas. They must have an actual employment relationship with the U.S.
Company. The L-1 employee can also be placed on the payroll of the U.S.
affiliate.
Salary Requirements
There are no wage requirements in order to obtain an L-1 visa. Therefore,
consular officers will only determine whether the employee in question
will have enough resources so that the employee will not become a public
charge. The essential element to be determined is the level of control
over the employee's activity, and not the extent of the salary the employee
receives.
Can an L-1 Employee come to the U.S. on a part-time basis?
Normally, L-1 petitioners
come to the U.S. on a full-time basis, but it is permissible to do so
on a part-time basis. However, the employee must dedicate a significant
portion of his or her time on a regular and systematic basis. For instance,
an employee can be managing the U.S. affiliate at the same time as she
still manages the overseas affiliate. An L-1 visa can now be given when
an employee will only be making brief and infrequent trips to the U.S.
(as with seasonal or intermittent work or for work lasting less than
six months of the year), so long as the work to be done is of L-1 caliber.
The employee must be employed full-time with the company, but can split
their time between the U.S. and the foreign entity. The key issue in
these cases is whether the alien's principal purpose while in the U.S.
is consistent with the requirements of L status. This allows the employee
to reside outside the U.S. and obtain a visa in order to enter the U.S.
on a short-term basis. Transferees can also work part-time for more
than one subsidiary of the same international corporation. But to work
at a second company, one must file a new petition to establish a qualifying
relationship.
In a part-time situation, the alien may have L-1 petitions approved
for her beyond the usual time limits. This means that if an alien employee
is required to make brief and infrequent business trips to the U.S.,
he/she may be eligible for an L-1 visa whose time limits are more than
the 5 or 7 standard years that limit the stay of full-time employees.
In order to do so, the alien must establish through proof such as payroll
and tax records, that he or she is actually a resident abroad and only
occasionally visits the U.S. to oversee U.S. operations.
Extensions
of Stay and Renewals
An L-1 visa holder can usually stay in the U.S. or travel in and out
for a period of three years. The permissible initial period of stay
for an alien who is coming to open a new office is one year. Extensions
are possible after the initial year is over, so long as the company
is doing business both in the U.S. and abroad.
Extensions of stay are granted in two-year intervals, up to seven years
for managers and executives, and up to five years for those employees
with specialized knowledge. If the specialized knowledge employee has
performed managerial duties for the last six months, he or she may remain
in the U.S. up to seven years, provided these managerial duties have
been documented to the INS through the filing of an amended L-1 petition.
The extension of stay is filed using the same forms as the initial L-1
petition and L supplement, although only a letter from the employer
regarding the continuing employment needs to be submitted as documentation.
So long as the employment of the L-1 petitioner has not changed materially,
the main issue in extending the stay of an employee is whether they
have reached the time limit. It used to be the case, that an extra year
beyond the time limits could be added in the case of extraordinary circumstances,
however, this has been eliminated. The non-immigrant intent of the employee
is no longer an issue in the granting of extensions. The filing of papers
requesting permanent residency cannot be the sole basis for denying
an L-1 extension of stay.
If a person no longer has the L-1 status and files for an extension
must begin the whole process again by applying for an L-1 visa abroad,
unless they can justify a late filing of the extension of stay. If the
applicant overstayed the time limit, he must present his visa application
in the country of the alien's nationality. A third country consulate
will not process the application unless the lien can show "extraordinary
circumstances." If the alien has overstayed by a significant amount
of time (181 days or more), they may be excluded from the U.S. upon
their departure. They will then be ineligible for any U.S. visa for
a period of three to ten years, depending how long they overstayed their
welcome.
An L-1 alien who has been present in the U.S. for the full period of
stay is barred from reentering the U.S. in either H or L status until
he/she has resided outside of the U.S. for a full year. Brief trips
to the U.S. during that year do not bar the alien's return in L-1 status,
but do not count toward fulfilling the one-year requirement. Therefore,
every day spent in the U.S. extends the length of the one-year requirement.
The employer must submit evidence with the petition to assure compliance
with the one-year requirement. Documentation includes information concerning
the alien's employment during the past year, the alien's places of residence
during the past year, along with the dates and the purposes of each
trip to the U.S. by the alien in the past year.
How must the
company abroad be related to the U.S. company?
Both the U.S. entity and the foreign company may be branch offices,
affiliates or subsidiaries of the same corporation. A "branch office"
is defined as an operating division or office of the same organization
housed in different locations. A 50% ownership, as a joint venture,
clearly meets relationship requirements for an L-1 transfer, but is
not necessary. The relationship can also be established if some common
group owns more than 50% of both the U.S. and the foreign entity, so
long as the same group of shareholders owns a controlling interest in
each business, and each shareholder must own approximately the same
proportion within the group. Less than majority ownership, so long as
there is control, may be sufficient. The general rule is that one company
that is a party to the transfer must either have "effective control"
over management and policy of the other, or both must be "effectively
controlled" by the same third company. Some factors generally pointing
to "effective control" are:
1) common name
2) regular sharing and exchange of personnel,
3) cross directorship
4) sharing of technical, financial and research skills
5) size and general recognition of the organization
Employment can
be by a firm, corporation or other legal entity or its affiliate or
subsidiary.
This includes profit, non-profit, religious
and charitable organizations. A contractual relationship is generally
NOT sufficient to establish the necessary relationship (licensing, franchising,
etc).
Documentation of ownership and structure depends on the entity type:
Large organization: statement by a corporate officer or an authorized
official, supported by an annual report or SEC filing listing the subsidiaries
(applies to any publicly trade company)
Small organization: statement by a corporate officer or an authorized
official, supported by stock ownership records, accountant's reports,
tax records and corporate papers (articles, by-laws, charters, board
meeting minutes)
Partnerships: partnership agreements and documents that might be required
to establish the ownership by the partnership of other organizations
involved in the transfer
Sole Proprietorship: statement of owner, supported by evidence identifying
the owner of the proprietorship, such as licenses to do business, IRS
registration as an employer, registration of a business name and business
tax returns
Non-Immigrant
Intent
Non-immigrant intent is one of the requirements for the L-1 visa. The
applicant must make a showing that their transfer is of a temporary
nature. The factors used to determine the temporary nature of the transferee's
employment are as follows:
1) the U.S. operation is a limited one
2) the beneficiary's commercial interests in his home country require
his departure
3) a specific showing that the beneficiary's services have temporary
limits
4) U.S. company's ability for operation after the departure of the transferee
The burden or proving the temporary nature of the
transferee's employment is on the
applicant for the L-1 visa.
Supporting
Documents - L-1 Petitions
1) A certified copy
of your existing company's annual report, records of stock ownership,
certified audits,
balance sheets, profit and loss statements, business income tax records,
articles of incorporation of incorporation in
the U.S., By-laws and minutes of Board Meetings;
2) A detailed statement regarding ownership and control; evidence to
show the ownership and
control of both the U.S. and the foreign entity
3) Applicable business licenses/permits/registration;
4) Promotional materials about the company, its products, services or
key people or any other
marketing materials;
5) Copies of any awards, memberships or special achievements by the
company or key
personnel;
6) Lease/Deed; Mortgage or rent receipts;
7) Organizational chart of the U.S. and the foreign entity's structure,
describing managerial
hierarchy and staffing levels;
* indicate the current names of executive, manager(s), supervisor(s),
the beneficiary's position in
the chart
* indicate the names of other existing employees with each department
or subdivision
* clearly indicate all existing employees to be under the beneficiary's
supervision in the U.S.
including names, titles, brief job duties, nonimmigrant
status, etc.
8) Sample invoices or contracts, indicating trade in goods or services,
preferably orders
transacted with various countries, average or largest
orders;
9) Records of business registration with the Income Tax Department
10) Personal tax returns
11) Copies of the payroll documents of the corporation or any other
documentary evidence
reflecting one continuous year
in the three-year period preceding the filing of the petition in
an executive or managerial
capacity and that the proposed employment involves executive
or managerial capacity and
that the proposed employment involves executive or
managerial authority over
the new operation, as well as salary;
12) Proof of acquiring physical premises for any new office in the U.S.
(e.g. a lease or contract of
sale and deed for a property);
13) A detailed business plan to show that the new office will be able
to sustain a manager or
executive transferee within one year
of approval of the petition including, but not limited to the
following:
* the proposed nature of the office, describing the scope of the
entity, its organizational structure
and its financial goals
* the size of the U.S. investment and the financial ability of
the foreign entity to remunerate the
beneficiary and to commence doing business in the
U.S.
* the organizational structure of the foreign entity
14) Evidence that the foreign company will remain in operation during
the full period of the alien's
transfer, through evidence of the size
and length of existence of the foreign company, and
such other evidence as ongoing contracts
for the provision of goods and services and
provision for the management of
the foreign operation while the alien is transferred,
particularly when the alien is the
owner or a principal of the foreign company
15) Photographs of the parent company business premises. Photos should
include factory and
work space, inside and outside
of the office/building with the company emblems/signs
displayed on the outside of the building,
equipment, merchandise, products, etc. Provide
address(es) and detailed directions for
each facility.
16) Photographs of the U.S. based business premises (inside and outside
of the office/building),
including posted signs of the business
name on the outside of the building. Inside photos
should show working areas, files,
sample products, etc. and any employees
17) Submit proof of business conducted at the location listed on the
petition. Such evidence
should include telephone bills,
utility deposits and bills, rent receipts, etc. Provide copies of
all city, county and state business
licenses. In addition, submit a letter from the owner of the
building and/or management company
on their corporate stationary, verifying
subsidiary/affiliate company occupancy.
This should include information to show
authorization for another company
to sub-lease to your business.
18) Copies of the following to show that the petitioner has been actively
and systematically
conducting its regular course of
business in international trading and other business
activities:
* copies of the latest corporate financial statements including
Balance Sheets, Statements of
Income and Expenses describing
the petitioner's past and current normal business
operations
* Copies of all U.S. Customs documents relating to the
importation and/or exportation of goods
* Copies of the petitioner's Payroll Summary, W-2 and W-3
evidencing wages paid to
employees
* Copies of all corporate U.S. tax returns filed with the
IRS
* Submit a list of employees from the date of establishment
to the present, including names,
job titles, Social Security number,
Nonimmigrant Status (L-1, H1B, etc.), beginning date and
ending date of employment, wages
per week, etc.
19) Original major sales invoices to identify the gross sales amount
as reported on the Income
and Expenses Statement on the Form
1120.
20) Show evidence of financial support by parent company, i.e. money
transfers from parent
company
21) Submit a copy of all Notice(s) of Action showing approval of petition(s),
the approved
classification and the time frames
given.
22) Submit evidence of beneficiary's qualifications for this position.
The L-1 Blanket
Petition Program
The INS includes a
special procedure to be used by companies that are in need of frequent
use of the L-1 visa category. This special procedure results in the
companies' only being required to get one approval from INS during the
initial three-year period, concerning managerial and executive transfers
and transfers involving professionals (INS defines "professional"
as a person filling a position requiring the equivalent in education
and experience of a baccalaureate degree) with specialized knowledge.
Nonprofessional specialized knowledge employees cannot be transferred
under a blanket petition. The three-year period may be extended infinitely
by an extension request at the end of the initial period.
In order for a company
to qualify for a blanket petition program:
* All qualifying organizations
within the international structure of the applying company must be
involved in commercial trade or services
* The petitioner must have an office in the U.S. that has been doing
business for at least one year
* The company must have at least three domestic or international branches
or affiliates
* One of the qualifying organizations within petitioner's organization
must have ANY ONE of the
following qualities:
* At least ten L-1 approvals within the past twelve months (nonprofessional
specialized knowledge
employees cannot be counted toward this total)
OR
* U.S. combined annual sales of at least $25 million
OR
* A U.S. workforce of at least 1,000 employees
Procedures:
Once the company receives
approval from the Regional Service Center, it can bring qualified employees
to the U.S. under this approval. The alien then must submit the same
supporting documentation (Form I-129S, attach I-171C) to the U.S. consulate
as is required for individual petitions, along with the blanket petition
approval notice and the certificate of eligibility issued by the company.
One must continue to establish the beneficiary's managerial, executive,
or specialized knowledge professional qualifications in each case.
Extensions of stay for individuals admitted under the blanket petition
require that the blanket petition is extended after the initial three-year
period of validity expires, and the extension of the authorized period
of stay of all employees admitted under the blanket petition. No further
extensions are needed after the first extension is approved. An employer
that does not file for an extension of the blanket petition cannot reapply
until three years after the petition expired.
Blanket petition procedures save qualifying organizations time and resources,
since they may obtain an L-1 petition that allows them to bring as many
employees to the U.S. as necessary, under the same L-1 petition. The
organization need not apply to the INS for each individual. This frees
up a large mount of time and resources. The organization can also make
its own determinations as to which employees it considers to be qualified
for the L-1 petition. This means that once the petition is approved,
there is no arbitrary waiting period for each individual application
to be approved.
Special rules apply
where the employee is being transferred to manage a "new office."
If the U.S. Company is less than one year old, it must show proof of
physical premises. This can be done, for example, by producing a lease
or a deed. It must be shown that the new office will be financially
capable of sustaining a manager or executive position within one year
of the approval of the petition. A statement must be provided as to
the scope and nature of the proposed office and its organization, its
financial goals, the size of the U.S. investment, the ability of the
foreign entity to financially provide for the transferred employee,
the organizational structure of the foreign company, and its ability
to begin doing business in the U.S. Basically, it must be shown that
after a reasonable period of time, the transferred employee will be
performing managerial or executive tasks, as opposed to the day to day
tasks necessary to produce a product or provide services. Initially,
the L-1 executive will be permitted to engage in such non-managerial
tasks, since it is presumed that the new office will not yet have other
workers on its payroll. The new office must, however, show a commitment
to hire such workers within a reasonable time. The L-1 visa extension
will still be denied, however, if there are no other workers, within
a reasonable time, hired to fulfill day to day tasks.
When a U.S. company
becomes linked with a foreign company, the INS takes the position that
an L-1 petition may not be filed for the employees of the foreign company
until a "qualifying relationship" has been formed. In order
for such a relationship to be formed, the necessary ownership and control
must be established, such as with an actual transfer of stock.
The U.S. and overseas companies must also be "qualifying organizations"
under INS rules. This means that the organization must be doing business
both abroad and in the U.S. for the entire period of the proposed transfer
of the employee.
