Intra-Company Transferees

Congress has recognized that in order to meet staffing and business needs, multi-national corporations at times may need to move key employees from the company's foreign operations to its domestic operations. To this end, Congress created non-immigrant visa categories for the efficient temporary transfer of employees and has also established a special immigrant visa category where the transfer requires permanent residency in the United States.

L-1 Non-immigrant Visas

Where a corporate relationship, such as a parent-subsidiary or affiliate relationship exists between an American and a foreign business entity, L-1 visas are available for the transfer of persons from the entity abroad to the entity in the U.S. In order to qualify for such a visa, the transferee must have worked abroad for one (1) continuous year within the preceding three (3) years in an executive or managerial capacity, or in a position that requires specialized knowledge, and that person must be transferred temporarily to the U.S. in order to work in an executive, managerial, or specialized knowledge capacity for the related U.S. business entity.

L-1 visas have two (2) categories: L-1A and L-1B. The first category, L-1A is appropriate for executive and managerial employees, while the second category, L-1B, is reserved for employees with specialized knowledge.

For L-1A visas, Immigration Law defines an "executive" as a person who directs the management of an organization, or a major component or function thereof. Such a person sets the goals and policies of the business and has discretionary decision-making authority. An executive functions independently, or receives only general supervision or direction from a higher-level executive, board of directors, or stockholders of the organization. "Manager" is defined as a person who manages an organization or a department, sub-division, function, or component of that organization. A manager supervises and controls the work of other supervisory, professional or managerial employees, or may manage an essential function within the organization. A manager has hiring and firing authority and exercises discretion over the day-to-day business operations. It must be noted, however, that the Immigration and Naturalization Service (INS) does not consider a first-line supervisor as a person acting in a managerial capacity - unless the employees supervised are degreed professionals.

L-1A visas may be granted by the INS for seven (7) years maximum, while L-1B visas are limited to five (5) years. Initially, the INS may approve L-1 visas for three (3) years, but extension is possible to the permissible limit for each visa. L-1A and L-1B visas are processed through the INS and consular offices of the U.S Department of State abroad. In order to accommodate the needs of large corporations that transfer key personnel on a fairly regular basis, however, the INS makes a Blanket L-1 visa is available, thereby significantly reducing processing time.

Immigrant Visa and Permanent Residency for Multi-National Executives & Managers

If immigration is contemplated, L-1A executives and managers have a distinct advantage over L-1B visa holders. The U.S. corporate entity may file an immigrant visa petition on behalf of a foreign national executive or manager employee if that employee has been employed for one (1) year during the course of the last three years by the corporation or other legal entity, affiliate or subsidiary. Under current regulations, the foreign national beneficiary of the immigrant visa petition may simultaneously file to adjust status to Legal Permanent Resident.

It should be noted that the one (1) year requirement may have been fulfilled in the U.S., provided that the employee is working for the same employer, affiliate or subsidiary in the U.S., and was employed for at least one (1) year of the last three (3) years by the company abroad before entering in a valid non-immigrant visa status. The individual must be entering the U.S. in order to continue to render services to the same employer or to a subsidiary or affiliate thereof, in a capacity that is either managerial or executive.

For permanent immigration, the INS definitions for "executive" and "manager" are the same as for L-1A visas noted above.

In contrast to the permanent residency process for executives and managers, employers of L-1B visa holders must first process labor certification through the Federal Department of Labor, before proceeding to the INS for an immigrant visa. The labor certification process can extend the time it takes to obtain permanent residency in the U.S. by one or two years.