Accelerate Your Path to Permanent Residence in the U.S. with an L-1A Visa

An individual L-1A petition must be filed with United States Citizenship and Immigration Services (USCIS) with the required fee. Canadian citizens have the option to file at the CBP at a Port of Entry on the Canadian-U.S. Land Border or a U.S. Pre-Clearance/Pre-Flight Inspection facility in Canada.

The L-1A petition qualifies for premium processing, which guarantees that the petition will be adjudicated within 15 calendar days of when forms and fees are received by USCIS.

An L-1A petition will typically be approved for a 3-year term, except for new offices which are approved for 1 year. You’ll be eligible for 2-year extensions thereafter, with a maximum period of 7 years in L-1A status.

If L-1A status is approved, your spouse and unmarried children under 21 years old can qualify for L-2 status. L-2 spouses can work in the U.S. without a separate application for employment authorization or a work permit. L-2 spouses and children can attend school on either a part-time or full-time basis, yet they aren’t permitted to extend their stay beyond the expiration of your L-1A nonimmigrant status. There is no need of a separate petition for L-2 status; simply apply for an L-2 visa at the U.S. consulate once your L-1 petition is approved

To submit an L-1A petition, there are three essential requirements that must met:

• The petitioner must be a qualifying organization.
• The beneficiary must have worked in a managerial or executive role outside the U.S. for a continuous year within the past three years.
• The intended employment in the U.S. must also be in a managerial or executive capacity.

If you’re looking to establish an L-1A New Office in the United States, there are a few additional requirements you need to be aware of. Firstly, you must secure a physical premise to house the new office – a virtual office or mailbox address won’t suffice. Additionally, within one year of petition approval, you’ll need to demonstrate intention to support an executive or managerial position. This includes providing details about the nature and scope of entity, its organizational structure and financial goals, the size of U.S. investment, foreign entity’s financial ability to remunerate the beneficiary, and the organizational structure of foreign entity.

According to USCIS regulations, a new office is defined as an organization that has been doing business in the United States through a parent, branch, affiliate, or subsidiary for less than 1 year. To ensure that L-1A new office petition gets approved by USCIS, it’s important to provide detailed information about the nature of the office, its scope, organizational structure, financial goals, and investment size.

One of the best ways to make a strong case for L-1A new office is by submitting a detailed business plan. While not required by regulation, a business plan can help educate USCIS adjudicators on the business operations and the industry company operate in. The business plan should cover essential information such as company’s objectives, competition, clients, sales strategy, employee background, location, corporate structure, and investment size in the business. It’s also recommended to include a 3-5-year cash flow statement to showcase company’s business’s growth prospects.

Make sure to provide the USCIS with documentation that establishes sufficient physical space for housing the new office, such as a lease agreement or photographs of the office premises. The USCIS may also require documentation that proves the size of the U.S. investment and foreign company’s financial ability to remunerate the beneficiary and begin doing business in the U.S., such as initial wire transfers to the United States entity, bank statement of the United States entity detailing the amounts for the capital contribution, a letter of intent, MOU or other similar documents outlining the details of investment in the United States entity, documents showing foreign organization paid for services to start business in the United States, foreign organization’s tax documents, foreign organization’s audited balance sheets and statements of income and expense showing its financial position, and foreign organization’s business bank statements.

In general, a L-1 new office approval is valid for one year. To extend a L-1 new office approval, there are specific regulatory requirements to meet. The extension petition can be filed as early as 180 days before the I-94’s expiration date or until the day before the I-94 expires. But beware, just because you got approval for one year doesn’t guarantee an extension. The petitioner must demonstrate that the U.S. entity has made progress in the U.S. market and created a favorable impact such as revenue growth, employment of new employees, or opening new locations. If there is no visible progress, you must explain the economic conditions limiting growth and the foreign company must show enough funding and investment to continue operations.

To successfully file a new office extension, a petitioner must provide evidence that 1) the qualifying corporate relationship continues to exist, 2) the duties performed by the beneficiary in the previous year and to be performed in the next year are managerial or executive, 3) a statement describing the staffing of the new company, 4) the financial status of the U.S. operation and 5) the U.S. entity has been doing business in the prior year.

A qualifying organization means a United States entity or foreign firm, corporation, or other legal entity which:

• Has a qualifying relationship between the U.S. entity and a foreign entity.
• Is or will be doing business as an employer in the United States and in at least one other country for the duration of the non-citizen’s stays in the United States.
• Otherwise meets the requirement of section 101(a)(15)(L) of the Immigration and Nationality Act.

The qualifying relationships are:

• Parent
• Branch
• Subsidiary
• Affiliate

Parent means a firm, corporation, or other legal entity which has subsidiaries.

Subsidiary means a firm, corporation, or other legal entity that is directly or indirectly owned and controlled by a parent. It must be established that the parent: (1) owns either directly or indirectly more than 50% of the subsidiary and controls the subsidiary. (2) owns either directly or indirectly half of the subsidiary and controls the subsidiary. (3) owns either directly or indirectly 50% of a joint venture and has equal control and veto power over the subsidiary. (4) owns either directly or indirectly less than 50 of the entity but in fact controls the entity.

Branch means an operating division or office of the same organized housed in a different location. The office or operating division is not a separate business entity. Usually, a branch will be registered as a foreign corporation operating in the United States.

Affiliate means: (1) one of the two subsidiaries both of which are owned and controlled by the same parent or individuals, or (2) one of the two legal entities owned and controlled by the same group of individuals, each individuals owning and controlling approximately the same share or proportion of each entity, or (1) in the case of a partnership that is organized in the United States to provide accounting services along with managerial and/or consulting services and that markets its accounting services under an internationally recognized name under an agreement with a worldwide coordinating organization that is owned and controlled by the member accounting firms, a partnership (or similar organization) that is organized outside the United States to provide accounting services shall be considered an affiliate of the United States partnership if it markets its accounting services under the same internationally recognized name under the agreement with the worldwide coordinating organization of which the United States partnership is also a member.

Ownership and control are the two of the factors that USCIS will examine in determining whether a qualifying L-1 relationship exists between foreign employer and the U.S employer. Depending on the nature of the petitioner, USCIS may require different types of evidence to demonstrate ownership and control for purposes of establishing the qualifying L-1 relationship. USCIS considers ownership of more than 50 percent of an organization as evidence of control. Ownership means the legal right of possession with full power and authority to control. Control means the right and authority to direct the management and operations of the business entity. Ownership and control can be two ways:

• De Jure (By Law)- Where a legal entity owns more than 50% of an entity and because of this controls the entity.
• De Facto (In Fact)- Where a legal entity owns 50% or less of an entity yet still controls the entity.

De Facto control may be sufficient to qualify relationship as subsidiary/affiliate. To establish “de facto” control, the petitioner must provide agreements relating to the control of a majority of the shares’ voting rights through proxy agreement. A petitioner can show control by submitting documentation demonstrating that one or more equity holders irrevocably granted the ability to vote their equity to another equity holder, thereby effectively (and legally) giving the equity holder ‘control’ over the company or companies in question. If control is based upon proxy votes those proxy votes must be irrevocable to establish control.

If the ownership by a common group or same individuals, each individual in the group must own approximately the same share or proportion of each entity.

Franchises and those relationships based on contractual or licensing agreements generally are not qualifying relationships for L-1 purpose.

Partnerships that market accounting or consulting services under internationally recognized name and under an agreement with a worldwide coordinating organization that is owned and controlled by the member firms, are affiliates. Well known examples are Price Waterhouse Coopers, Ernest & Young, KPMG etc.

A qualifying L-1 relationship can exist when an equity joint venture is created under corporate law if the contributing company owns at least 50 percent of the venture and exercises control over the venture.

A non-equity joint venture does not establish a qualifying L-1 relationship, because no separate entity is formed.

If L-1A status is approved, your spouse and unmarried children under 21 years old can qualify for L-2 status. L-2 spouses can work in the U.S. without a separate application for employment authorization or a work permit. L-2 spouses and children can attend school on either a part-time or full-time basis, yet they aren’t permitted to extend their stay beyond the expiration of your L-1A nonimmigrant status. There is no need of a separate petition for L-2 status; simply apply for an L-2 visa at the U.S. consulate once your L-1 petition is approved.

We have compiled a comprehensive list that can help navigate the process of establishing a qualifying relationship:

• Article of Incorporation
• Articles of organization
• Corporate bylaws
• Operating agreements
• Meeting minutes that list shareholders, members
• Stock certificates
• Stock ledger
• Proof of stock purchase
• United States and foreign tax returns
• Annual report
• Joint venture agreement

It is important to understand the doing business requirement to successfully navigate the L-1 visa process. It is essential that both the U.S. employer and the qualifying organization abroad must be doing business for the entire duration of the beneficiary’s stay in the United States. Doing business is not merely the presence of an agent or office, but rather a regular, systematic, and continuous provision of goods and/or services by a qualifying organization. This includes providing services internally within corporate entities and does not require the work to be done on an open marketplace or with third parties. International trade is not required in order to establish that the entity is doing business; it requires business activity, not just the registration of the business. An exception is granted to L-1A new office petitions, which do not have to be actively engaged in doing business in the United States at the time of filing. For such petitions L-1A petitioner must simply submit evidence that they have secured physical premises to house the new office and the proposed U.S. operation. In addition, a qualifying organization outside of the United States must continue to engage in the regular, systematic, and continuous provision of goods and services for the entire duration of the L-1 beneficiary’s stay, although such organization does not have to be the same organization that employed the beneficiary abroad.

To establish the doing business requirement, a petitioner may submit evidence such as annual reports, audited financial statements, major sales invoices, business bank statements, vendor/supplier or customer contracts, third party license agreements, or loan and credit agreements.

One of the important requirements for L-1 Visa eligibility is that the employee must have worked for a qualifying organization outside the United States for a continuous period of one year within the three-year period prior to filing the petition. Part time employment or employment with an unrelated organization does not count towards the fulfillment of this criterion. However, full-time services divided among affiliated companies may be counted in the aggregate if each company employs the beneficiary for part of the period.

The one-year employment abroad is measured from the time of filing the L-1 petition not admission so that an individual must have one year of the prior three years employment abroad prior to filing an L-1 petition.

It should also be noted that brief trips to the U.S. on other visas such as a B-1 or B-2 do not interrupt the one-year period but are not counted toward it. This means a person who spends 60 days in the U.S. over a year period would not accrue the one-year employment abroad requirement until after one year and 60 days were reached. Additionally, any periods of employment in the U.S. and time spent in the U.S. in any capacity does not satisfy the one-year requirement. However, individuals lawfully employed by the qualifying organization in other capacities such as an E-2 or H-1B can generally still be eligible for an L-1 visa, but the time spent in those capacities do not count towards the three-year employment abroad criteria required for eligibility. For example, if a beneficiary worked in the U.S. in H-1B status for the qualifying organization from January 2, 2017 to January 2, 2018 and then the petitioner filed for L-1 for the employee, the pertinent three-year period would be January 1, 2014 to January 1, 2017 thus not counting the year in H-1B status.

It is important for individuals seeking L-1 visa eligibility to understand the qualifying criteria and how it is computed. Any periods of stay in the U.S. as an L-2, H-4 or F-1 (including OPT), or not being employed or being employed with another unrelated company do count in computing the three years of employment abroad and therefore do not result in an adjustment for the three years as does employment in the U.S. for the qualifying organization. It is also important to note that there is no distinction between U.S. companies with subsidiaries abroad and those with employees abroad who work directly for the parent company. The L-1 classification does not require a petitioner to establish that a beneficiary has been employed abroad by a separate foreign entity or branch office. The direct employment with a qualifying U.S. entity, if based outside the United States, allows a noncitizen to accrue the required one year of continuous employment abroad with a qualifying organization in the three years preceding the filing of the petition.

Moreover, it is immaterial whether the United States and foreign employers were qualifying organizations during the employment period abroad, as long as the relationship is present during the time the beneficiary is in the U.S. in L-1 classification. Additionally, there is no requirement that the affiliation must have existed for a year before filing the petition.

The evidence that can be submitted to establish this requirement may include employment offer letters, employment agreement, promotion letters and pay statements.

Managerial capacity means an assignment within an organization in which the employee primarily:

• Manages the organization, or a department, subdivision, function, or component of the organization;
• Supervises and controls the work of other supervisory, professional, or managerial employees, or manages an essential function within the organization or a department or subdivision of the organization;
• another employee or other employees are directly supervised, has the authority to hire and fire or recommend those as well as other personnel actions (such as promotion and leave authorization) or, if no other employee is directly supervised, functions at a senior level within the organization hierarchy or with respect to the function managed; and
• Exercises discretion over the day-to-day operations of the activity or function for which the employee has authority.

There are two types of managers, functional managers and personnel managers. Please note that first-line supervisors who supervises the work of non-professional employees will be not considered as managers, even though they may be referred to as managers in their organization.

If it is a functional managerial position documentary evidence is required to establish that the function is a clearly defined activity and is core to the organization, the beneficiary will: primarily manage, as opposed to perform, the function; act at a senior level within the organizational hierarchy or with respect to the function managed; and exercise discretion over the function’s day-to-day operations.

A functional manager who primarily manages an essential function can also be supported by personnel outside the United States within an international organization who perform the day-to-day administrative and operational duties.

If it is a personnel managerial position documentary evidence is required to establish the managerial authority over the subordinate employees that includes hiring and firing of subordinates or recommending these and other personnel actions.

Executive capacity means an assignment within an organization in which the employee primarily:

• Directs the management of the organization or a major component or function of the organization;
• Establishes the goal and policies of the organization, component, or function;
• Exercises wide latitude in discretionary decisions; and
• Receives only general supervision or direction from higher-level executives, the board of directors, or stockholder of the organization

USCIS does not consider a beneficiary to be acting in a managerial or executive capacity merely based on the number of employees that they:

• Supervise or have supervised; or
• Direct or have directed.

USCIS examines the petitioner’s description of the job responsibilities to assess if the duties are primarily of an executive or managerial character. This ensures that a beneficiary not only has the requisite authority, but that a majority of their duties relate to operational or policy management, not to the supervision of nonprofessional employees, performance of the duties of another type of position, or other involvement in the operational activities of the company.

A beneficiary may not claim to be employed as a hybrid “executive/manager” and rely on partial section of the two statutory definitions. If a petitioner chooses to represent the beneficiary as both an executive and manager, it must establish that the beneficiary meets each of the four criteria set forth in both the statutory definition for executive and statutory definition for manager.

USCIS reviews the totality of record when examining the managerial or execute capacity of the beneficiary. This includes company’s organizational structure, the duties of subordinate employees, the presence of other employees to relieve the beneficiary from performing operational duties, the nature of the business and any other factors that will contribute to understand a beneficiary’s actual duties and a role in a business.

We have put together a list to aid in navigating the process of establishing an executive or managerial position

Documents that can establish Executive position:

• A letter from the authorized official of the United States and foreign organization providing a detailed description of duties.
• Internal emails with subordinate staff and other executives and managers
• External emails or correspondence with customers or vendors
• Publications in the media about the executive
• Internal policy documents
• Annual report narratives
• Contracts showing the executive as a signatory
• Financial documents listing the executive and their capacity
• Payroll information or pay statements evidencing employment of subordinate staff
• Organizational charts

Documents that can establish Managerial position:

• A letter from the authorized official of the United States and foreign organization providing a detailed description of duties.
• Internal emails with subordinate staff
• Offer letters or termination letters issued to subordinate staff
• Leave approvals of subordinates
• Annual assessments of subordinates
• External emails or correspondence with customers or vendors
• Internal management documents
• Contracts showing the manager as a signatory
• Business documents showing the manager and their capacity
• Organizational charts
• Degrees/diplomas of professional subordinate staff
• Payroll information or pay statements evidencing employment of subordinate staff

For EB-1(c) petitions, a petitioner must have a qualifying relationship with the beneficiary’s foreign employer at the time the petition is filed, and maintain that relationship until the petition is adjudicated. If a corporate restructuring affecting the foreign entity occurs before the immigrant visa petition is filed, a petitioner may establish that the beneficiary’s qualifying foreign employer continues to exist and do business through a valid successor entity.

However, an L-1 extension petition can be filed even if the foreign organization that employed the beneficiary has dissolved and there is no successor in interest or successor entity, so long as there is a foreign qualifying organization, even if that foreign organization is not the one that employed the beneficiary.

The work performed abroad must be of an executive or managerial nature for filing EB-1 petition. An L-1A petition can be filed for someone who had specialized knowledge position (L-1B) abroad.

The foreign and the United States employer must have been doing business for at least one year. In a L-1A new office, there is no requirement that the United States employer must have been doing business for at least one year.

USCIS also holds that a branch office in the United States cannot be a petitioner for the EB-1 category, arguing that “an unincorporated branch office of a foreign employer [is not] qualified to offer permanent employment to a beneficiary for the purpose of obtaining an immigrant visa for the beneficiary.”