NON TRADITIONAL L-1 PETITIONS
1. Petitions to Extend L-1Bs Past the 5th Year or L-1As Past the 7th Year
Immigration regulations impose a 5-year maximum on the amount of time an L-1B specialized knowledge beneficiary can remain in the United States. L-1B status is granted for an initial 3-year period and one 2-year extension can be granted, brining the total to five years. The same regulations impose a 7-year maximum on the amount of time an L-1A managerial or executive beneficiary may remain in the United States. L-1A status is granted for an initial period of 3 years and two 2-year extensions can be granted, bringing the total to seven years.
Once the five- or seven-year maximum has been reached, the beneficiary, under ordinary circumstances, must either change status or leave the United States. However, there is an exception to this rule for aliens whose employment in the United States is seasonal, intermittent, or consists of an aggregate of six months or less per year. In addition, the cap on L-1 status does not apply to aliens from Canada or Mexico who regularly commute to perform part-time work in the United States.
In order to qualify for this exception, the petitioner and beneficiary must prove that the alien qualifies for the exception. Most beneficiaries would be able to provide arrival/departure records; and copies of tax returns and other evidence of employment abroad.
L-1 beneficiaries residing in Canada and commuting to part-time work in the U.S. would have a harder time coming up with concrete evidence of days spent in the United States, since Canadians are passport- and visa-exempt, and are issued “Multiple Entry” I-94 Arrival/ Departure cards. Therefore, the Department of Homeland Security does not keep a record of each arrival and departure of a Canadian citizen as it does for nationals of every other country. The alien is responsible for producing his own record of the amount of days that he spent in the U.S. in the past year. In our experience, Customs has approved extensions for commuting Canadians past the 5th or 7th year when those aliens produce copies of date books or computerized calendars recording days spent in the U.S., coupled with evidence of a foreign residence.
2. L-1 Petitions for Beneficiaries of a Start-Up Company
While ordinarily L-1 beneficiaries are transferred from an established foreign company to an established U.S. company, beneficiaries may also enter the U.S. in L-1A or L-1B status to work for a start-up company. A start-up company is one that has been engaged in the regular, systematic provision of goods and/or services for less than one year.
The start-up company, like any other company petitioning for an L-1 beneficiary, must exist in a qualifying corporate relationship with the company abroad at which the beneficiary has worked.
An L-1 will not be granted for a start-up company until significant plans have been laid for the new company. The new company must have already been incorporated, and must have obtained an Employer Identification Number (EIN). The company must also have already secured physical premises in the U.S. sufficient to house the new operation. The petitioner must provide U.S.C.I.S. with evidence of those premises in the form of a lease or title deed.
If the petition is for an L-1A beneficiary, the petitioner must also provide a business plan sufficient to show that within one year, the company will have grown to the point where it can support a managerial or executive position.
Unlike traditional L-1s, L-1s granted for start up companies are only issued for an initial period of one year. The purpose behind this limitation is to allow the service to review the financial status of the new company after one year, to ensure that it is becoming or has become a viable company capable of supporting an L-1 beneficiary. After the one year has passed, beneficiaries’ L-1 status can be renewed in two-year increments all the way up to the 5-year maximum for L-1Bs or the 7-year maximum for L-1As.
3. L-1A Manager/Executive Petitions Where the Beneficiary’s Position Abroad was in a specialized knowledge Capacity
Regulations at 8 C.F.R. require that the beneficiary of an L-1 petition must have worked in either a Managerial/Executive capacity or a specialized knowledge position for one of the three years preceding the filing of the L-1 petition, and that he/she must be coming to the United States to fill either a Managerial/Executive (L-1A) or specialized knowledge (L-1B) position.
Ordinarily someone entering in an L-1B position would have been working in a specialized knowledge capacity prior to his entry to the United States; and an L-1A beneficiary would have been working in a managerial or executive capacity prior to his entry to the U.S. However, the regulations do not require this consistency.
It is perfectly permissible for someone who worked in a specialized knowledge capacity during the past year to enter in L-1A status, provided he is being transferred to a managerial or executive position in the United States. This would ordinarily occur where the beneficiary’s transfer to the United States is also a promotion in position; or where he has specialized knowledge but is being transferred to the United States for the express purpose of training multiple levels of subordinate employees in the company.
One must also keep in mind that the distinction between “specialized knowledge” and “Managerial/Executive capacity” is somewhat artificial. Someone may have filled a managerial position at a foreign company in a position that required him to have specialized knowledge. But he may be entering the United States to work for a smaller company at which his managerial position is not justified. He may therefore only be working in a specialized knowledge capacity.
4. L-1 Petitions Where No Related Foreign Company Ever Existed, or Where No Related U.S. Company Exists
Section 101(a)(15)(L) of the Immigration and Nationality Act defines an L-1 nonimmigrant as one who,
within three years preceding the filing of his application for admission into the United States, has been employed continuously for one year by a firm or corporation or other legal entity or an affiliate or subsidiary thereof and who seeks to enter the United States temporarily in order to continue to render his services to the same employer or a subsidiary or affiliate thereof in a capacity that is managerial, executive, or involves specialized knowledge.” (Emphasis added).
The L-1 is typically used by people being transferred from a foreign company to a related U.S. company. However, the INA states that the L-1 beneficiary may be coming to work for the U.S. for “the same employer” who employed him abroad, and not necessarily for a related company. The wording of the INA permits a loose interpretation of what kind of corporate relationship is required for an L-1 petition. That is, there may be situations in which no foreign employer ever existed, and yet a beneficiary qualifies for L-1 status; and there may be situations in which no U.S. company actually exists, and yet the beneficiary may qualify for L-1 status to work in the U.S. for a foreign employer. Both of these situations have been recognized by the precedent decision or regulation, and are recognized by the Department of Homeland Security.
First, a foreign company does not need to exist in order for a beneficiary to qualify for L-1 status. In the BIA precedent decision Matter of Chartier, an L-1 beneficiary was found to hold valid L-1 status where he had been employed in Canada by a Michigan (U.S.A.) company which had never established an office in Canada but which had $1 million dollars in sales to Canada per year. The company had employees in Canada even though it had no formal office. The beneficiary was then brought down to the U.S. in L-1 status to work for the company in the U.S. His employment with the U.S. company while he was in Canada was considered qualifying employment for the purposes of the L-1.
Second, a U.S. company need not necessarily exist in order for an L-1 petition to be valid. The 1987 Final Rule in the Federal Register implementing the current L-1 regulations specifically recognized that foreign companies may set up “liaison offices” in the United States to promote the business of the foreign corporation through research and providing consultation to U.S. customers and trading companies.
As an example, one of our clients worked for an Australian company that made a contract to sell its patented scanning equipment to a U.S. research organization. The Australian company transferred this key employee to the United States to oversee the sale and then train the employees of the U.S. company in the use of the highly specialized equipment. Because of the relationship that this individual formed with the U.S. company, and because of the high quality of the equipment, the Australian company made several more equipment sales to the U.S. company in the course of the beneficiary’s stay in the U.S. This type of arrangement works as an L-1 even though the beneficiary was working in the U.S. for a foreign employer rather than at a related U.S. company.
