Overview of Requirements for L1 and L2 Visas

L1 visa

 

Introduction

The L1 nonimmigrant visa category is for intracompany transferees. A qualifying organization (for L1 purposes) may petition to transfer an employee from overseas to a parent, branch, subsidiary, or affiliate in the United States. There are two categories for beneficiaries. L1A visas are for persons who will work in a managerial or executive capacity and L1B visas are for those who will work in a capacity that involves “specialized” knowledge. In addition, certain relatives of L1 visa beneficiaries may be eligible for derivative L2 visas. This article will provide an overview of general requirements for L1 and L2 petitions. To learn more about the requirements particular to L1A visas, please follow this link. To learn more about the requirements particular to L1B visas, please follow this link.

We cover bringing domestic workers of L1 intracompany transferees on B1 visas in a separate article [see article].

Statutory and Regulatory Requirements for Beneficiaries

Sections 101(a)(15)(L) and 214(c)(2) of the Immigration and Nationality Act (INA) list the general statutory requirements for eligibility for an L1 (both L1A and L1B) and L2 visa.

In order to be eligible for an L1 visa, an alien must:

have been employed continuously by the petitioning entity (firm, corporation or other legal entity or an affiliate or subsidiary thereof) continuously for one year within the three years immediately preceding the filing of the petition [INA § 101(a)(15)(L)];
must be entering the United States to continue to render his or her services to the petitioning entity in a capacity that is managerial, executive, or involves specialized knowledge [INA § 101(a)(15)(L)].

In order to be eligible for an L2 visa, an alien must be the spouse or minor child of an alien who is the beneficiary of an L1 visa petition [INA § 101(a)(15)(L)]. The personal or domestic servant of an L1 beneficiary seeking to join the L1 beneficiary in the United States may be eligible for a B-1 visa, provided that he or she meets the requirements for B1 status [9 FAM 41.54 N22][PDF version].

Furthermore, as is the case for eligibility for nonimmigrant benefits in general, the intended beneficiary must be admissible to the United States.

The 1-year employment requirement (within 3 years prior to the filing of the petition) must take place abroad may not be satisfied if part of the 1 year was spent working for the petitioner in the United States.1 However, time spent in the United States does not necessarily interrupt the 1-year requirement.2 The 1 year of employment must be continuous and full time with the petitioner.3 Part-time employment in the aggregate may not satisfy the requirement.

There is no wage requirement to qualify as an L1 beneficiary, and to that effect, consular officers are instructed to determine only whether the beneficiary would is inadmissible on public charge grounds [see article].4

Because a corporation is a separate legal entity from its owners or stockholders for purpose of L1 visa eligibility, a corporation may petition for one of its owners to receive an L1 visa, including a sole owner [9 FAM 41.54 N6.6]. However, the intended beneficiary would have to demonstrate that he or she otherwise meets all of the eligibility requirements for an L1A or L1B visa. The petitioner must demonstrate its ongoing international nature, and the L1 visa category is not intended to facilitate self-employment or the relocation of the petitioning organization [9 FAM 41.54 N9.4].

Despite L visas being nonimmigrant visas, the presumption of immigrant intent found in INA § 214(b) is inapplicable to beneficiaries of L visa petitions.5 An L1 petition is approvable even if the intended beneficiary has a pending application for lawful permanent resident (LPR) status.6

Statutory and Regulatory Requirements for Petitioners

Regulations found in 8 C.F.R. § 214.2(l)(G) define a “qualifying organization” for purpose of acting as an L1 visa petitioner. The regulations explain that a qualifying organization is a United States or foreign firm, corporation, or other legal entity which:

1. Meets exactly one of the qualifying relationships as a parent, branch, affiliate or subsidiary;
2. Is or will be doing business (engaging in international trade is not required) as an employer in the United States and at least one other country directly or through a parent, branch, affiliate, or subsidiary for the duration of the alien's stay in the United States as an intracompany transferee;
3. Otherwise meets requirements in INA § 214(a)(15)(l).

“Doing business” is defined in 9 FAM 41.54 N9.1 as “the regular, systematic, and continuous provision of goods and/or services by a qualifying organization and does not include the mere presence of an agent or office of the qualifying organization of the United States and abroad.” Pursuant to the “doing business” requirement, both the U.S. and foreign company must be active and engaging in business activities.7 In determining whether an organization is “doing business” “the totality of circumstances should be considered.”8 “Doing business” includes internal services within the qualifying organization and does not entail that work must be done in the open marketplace.9 If the owners of the foreign entity are present in the United States, that does not necessarily mean that the entity stopped doing business abroad.10

The Foreign Affairs Manual (FAM) provides further guidance on various terms listed in in the above regulations.

A “parent” means a firm, corporation, or other legal entity, which has subsidiaries [9 FAM 41.54 N6.1-2]. A “branch” means an operating division or office of the same organization housed in a different location [9 FAM 41.54 N6.1-3]. A “subsidiary” means a firm, corporation, or other legal entity which a parent owns directly or indirectly [9 FAM 41.54 N6.1-4]. An “affiliate” means one of two subsidiaries, legal entities, or a partnership owned and controlled by the same group of individuals. Subsidiaries in this case are affiliates of each other [9 FAM 41.54 N6.1-5].

In the case of a parent-subsidiary relationship, if the petitioner purchased the subsidiary, it is only required to show that the transfer took place.11 Joint ventures qualify even when the petitioner has less than majority ownership if the petitioner can demonstrate the requisite control for a subsidiary or affiliate relationship.12 A contractual relationship between the petitioner and an overseas entity is generally insufficient.13 In the case of a proprietorship where the petitioning entity is not a separate legal entity from the owner(s), the petitioner's statement of ownership and control must be accompanied by evidence.14 If the entities are owned by a common group, the owners must own approximately the same share or proportion of each entity in order to demonstrate affiliation.15 However, the Administrative Appeals Office has held that majority ownership is not required where control exists.16

Nonprofit organizations are eligible to file individual L1 petitions, but ineligible to file blanket petitions (see below for requirements to file blanket petitions) [9 FAM 41.54 N6.3].17

The petitioning organization must control the intended L1 beneficiary, and not a foreign company, in order to have an L1 petition granted.18

An importing employer which meets certain requirements may file a blanket petition to import aliens on L status rather than filing individual petitions for each alien [INA § 214(c)(2)(A)]. Regulations found in 8 C.F.R § 214.2(l)(4)(i) list the requirements that an entity must satisfy in order to be eligible to file blanket petitions:

(A) The petitioner and each petitioning entity are engaged in commercial trade or services;
(B) The petitioner has an office in the United States that has been doing business in the United States for one year or more;
(C) The petitioner has three or more domestic and foreign branches, subsidiaries, or affiliates; and
(D) The petitioner and other qualifying organizations have obtained approval of petitions for at least ten “L” beneficiaries in the previous 12 months; or have U.S. subsidiaries or affiliates with combined annual sales of at least $25 million; or have a United States work force of at least 1,000 employees.

Application Process

The petitioner must file a Form I-129, Petition for Nonimmigrant worker, on behalf of the intended beneficiary. When a petitioner is filing a Form I-129 for an employee for whom it has not filed a petition for before, the petitioner must submit a $500 fraud prevention and detection fee.19 Petitioners that have 50 or more employees with over 50% of the employees being L1s or H1Bs must pay a $2,500 fee in addition to other fees.20

The petitioner must have an employment relationship with the U.S. company that will have control over the L1 employee.21 Regulations do not require the submission of extensive evidence pertaining to the petitioner's corporate structure. However, the Department of Homeland Security (DHS) may. in its discretion, seek evidence to that effect in questionable cases [9 FAM 41.54 N6.4]. The petitioner must comply with all reasonable documentary requests during the adjudication of the petition, and failure to do so may lead to the denial of the petition.22

In the case of a “New Office,” that is a new parent, subsidiary, branch, or affiliate office is opened in the United States but has been active for less than 1 year or does not yet have proof of extensive business activity, it must demonstrate that sufficient physical premises for the office have been procured, the beneficiary is eligible, and the new office will support an executive or managerial position within 1 year.23

To learn about evidence required to support the eligibility of a specific L1 beneficiary, please see our articles on L1A [see article] and L1B [see article] visas.

In the case that the petitioner is filing a blanket petition, it must fill out a Form I-129S, Nonimmigrant Petition Based on Blanket L Petition and attach a Form I-171C demonstrating blanket approval.24

Approval and Change or Adjustment of Status

An L1A or L1B visa may approved initially for 3 years.25 Consular officers may limit the validity of an L1 visa to less than the period of validity of the approved petition or authorized period of stay [9 FAM 41.54 N20.2]. However, an initial limitation on the period of validity of L-1 status does not preclude the reapproval of L1 status. In the case that the petitioner is a “new office” (defined as having done business in the United States for less than 1 year), the initial L1 approval may not be in excess of 1 year [9 FAM 41.54 N11.1]. If USCIS is satisfied that the new office is doing business in the United States and the beneficiary is still qualified, the petition may be reapproved in 2-year increments.

An L1A visa beneficiary who is serving in a managerial or executive capacity shall not be authorized for admission in excess of 7 years on L1 status [INA § 214(c)(2)(D)(i)]. An L1B visa beneficiary who is serving in a capacity that involves specialized knowledge shall not be authorized for admission in excess of 5 years on L1 status [INA § 214(c)(2)(D)(ii)]. Time spent outside of the United States may be recaptured and added to the 5 or 7 year period of authorized stay.26

The same length of stay limitations on the L1 apply to any derivative L2s.27 L2 beneficiaries may stay in the United States even if the L1 departs provided that the L1 departed before his or her authorized stay expired.28 L2 beneficiaries may change status to L1 because time spent on L2 status does not count toward the L1 maximum period of stay [and in that scenario, the L1 may change to L2 status].29 L2 visa beneficiaries will be eligible for employment authorization while on L2 status [INA § 214(c)(2)(E)].

An L1 beneficiary with a pending adjustment of status application may travel without a grant of advance parole and not jeopardize the adjustment of status petition if he or she demonstrates that upon return, employment with the petitioning L1 employer will continue, and that he or she is still in possession of a valid L1 visa.30 L2 dependents with pending adjustment of status applications may also travel without a grant of advance parole if the same conditions [still in L1 status with a valid L1 visa] for the L1 principal exist.31 An L1 who reenters on advance parole and still has a valid L1 petition may apply for an extension of stay, and if approved, will have parole terminated and be admitted on L1 status.32 Furthermore, if an L1 reenters as a parolee and resumes L-1 employment as a parolee, he or she will not be considered to have engaged in unauthorized employment.33

Conclusion

This article explains general requirements that apply to both L1 beneficiaries and petitioners, information about the application process, and information about the length of stay and adjustment and change of status for L1 and L2 beneficiaries. Assuming that all of these requirements are met, the next step is to determine whether the intended relationship between the petitioner and beneficiary satisfy the requirements for L1A [see article] or L1B [see article] status. If certain requirements are not met for L1 status, the petitioner should consult with an experienced immigration attorney to determine if a different nonimmigrant visa (e.g., B1 [see article] or H1B [see article]) may be appropriate. Please continue to our articles on L1A and L1B to learn more about the specific requirements. Because petitioning for an L1 beneficiary is a complicated process with extensive documentation and evidentiary requirements, it is highly recommended that a petitioning entity retain an experienced immigration attorney.

_____________________

  1. I. Kurzban, Kurzban's Immigration Law Sourcebook: A Comprehensive Outline and Reference Tool (AILA 14th Ed. 2014) 997, citing Karmali v. INS, 707 F.2d 408 (9th Cir. 1983)
  2. Kurzban 997, citing 8 C.F.R. § 214.2(l)(1)(ii)(A); O.I. § 248.4. 9 FAM 41.54 N.10.3.
  3. Kurzban 997
  4. Kurzban 997, citing Cable DOS, 96-State-75033 (1996), reprinted in 73 No. 28 Interpreter Releases 963-64 (July 22, 1996)
  5. Id.
  6. Kurzban 1007, citing 8 C.F.R. § 214.2(l)(16)(i)
  7. Kurzban 999, citing 8 C.F.R. § 214.2(l)(1)(ii)(G). Matter of pf Chartier, 16 I&N Dec. 284 (BIA 1977)
  8. Kurzban 1001, citing Matter of __, (AAO CSC Apr. 9, 2013) published on AILA InfoNet at Doc. No. 13042555
  9. Kurzban 1001, citing Matter of Technical Servs., INC., WAC 07-277-53215 (July 22, 2008), published on AILA InfoNet at Doc. No. 08081964
  10. Kurzban 1001, citing Matter of __, NSC, LIN 09 003 51970 (AAO Jun. 13, 2013)
  11. Kurzban 999, citing Matter of __, CSC (AAO Oct 4, 2012), published on AILA InfoNet at Doc. No. 12100943
  12. Kurzban 999, citing Matter of Hughes, 18 I&N Dec. 289 (Comm. 1982) [arrangement acceptable where U.S. company owned 50% but had control over management and policy]; 9 FAM 41.54 N.6.1-4b
  13. Kurzban 999, citing Matter of Schick, 13 I&N Dec. 647 (RC 1970). But see Matter of Budget Rent-A-Car, Cas No. MIA-N-12807 (RC 1981) [franchise agreement that controls policies and advertisement sufficient]. However, Kurzban notes that neither the FAM or AFM seem to support Budget Rent-A-Car.
  14. Kurzban 1000, citing AFM at 32.3
  15. Olamide Olorunniyo Ore v. Clinton, 675 F.Supp.2d 217, 226 (D. Mass. 2009)
  16. Kurzban 1000, citing Matter of Hughes, 18 I&N Dec. 289, 293 (Comm. 1982) [“Ownership need not be majority of control exists.”]
  17. Kurzban 997, citing Matter of Church of Scientology Int'l, 19 I&N Dec 593 (Comm. 1988)
  18. Kurzban 999, citing FAM 41.54 N8.2; Cable, DOS, 11-State-002016 (Jan. 2011), published on AILA InfoNet at Doc. No. 11012433
  19. Kurzban 1006
  20. Kurzban 1006, citing PL 111-230, Title IV; USCIS Q&As, USCIS Implements H-1B and L1 Fee Increase According to P.L. 111-230, published on AILA InfoNet at Doc. No. 10100767l AFM 32.3(a).
  21. Kurzban 1000, citing Matter of Penner, 18 I&N Dec. 49 (Comm. 1982)
  22. Kurzban 1007, citing Calexico Warehouse, Inc. v. Neufeld 259 F.Supp.2d 1067, 1075-80 (S.D. Cal. 2002)
  23. Kurzban 1005, citing 8 C.F.R. §§ 214.2(l)(1)(ii)(F) and (ii)(H), 3(v), 7(i)(A)(3)
  24. Kurzban 1009, citing 8 C.F.R. § 214.2(l)(5)(ii)
  25. Kurzban 1006, citing 8 C.F.R. § 214.2(l)(7)(i)(A)(2)
  26. Kurzban 1006, citing Matter of IT Ascent, EAC 04-047-53189 (AAO Sept. 2, 2005), published on AILA InfoNet at Doc. No. 05102760; Memo, Aytes, Acting Assoc. Dir. Operations, HQPRD 70/6.2.8, 70/6.2.12, AD 05-21 (Oct. 21, 2005), published on AILA InfoNet at Doc. No. 05110363; AFM 32.6(g)
  27. Kurzban 1008, citing 8 C.F.R. § 214.2(l)(7)(ii)
  28. Kurzban 1008, citing Letter, LaFleur, Chief, Business and Trade Branch, Benefits Division, HQ 70/6.2.7 (July 16, 1996), reprinted in 73 No. 29 Interpreter Releases 1009-10, 1024 (July 29, 1996)
  29. Kurzban 1008, citing Memo, Aytes, Assoc. Dir., Domestic Operations, USCIS, HQPRD, 70/6.2.8, 70/6.2.12, AD 06-29 (Dec. 5, 2006), published on AILA InfoNet at Doc. No. 06122063; AFM § 32.6(h)
  30. Kurzban 1008, citing 72 FR 61791 (Nov. 1, 2007)
  31. Kurzban 1008, citing 8 C.F.R. § 245.2(a)(4)(ii)(C)
  32. Kurzban 1008, citing AFM at Appendix 23-4
  33. Id.

Resources and materials:

Kurzban, Ira J. Kurzban's Immigration Law Sourcebook: A Comprehensive Outline and Reference Tool. 14th ed. Washington D.C.: ALIA Publications, 2014. 997-1001, 1005-1008, Print. Treatises & Primers.

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L1 visa
L2 visa
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