Generally, to qualify for a L-1 Intracompany Transferee status it must be shown that the beneficiary is employed by a foreign parent, subsidiary, branch, or affiliate of the petitioning company.
8 CFR 214.2(l)(1)(ii)(A) defines an intracompany transferee as:
an alien who, within three years preceding the time of his or her application for admission into the United States, has been employed abroad continuously for one year by a firm or corporation or other legal entity or parent, branch, affiliate, or subsidiary thereof, and who seeks to enter the United States temporarily in order to render his or her services to a branch of the same employer or a parent, affiliate, or subsidiary thereof in a capacity that is managerial, executive, or involves specialized knowledge. Periods spent in the United States in lawful status for a branch of the same employer or a parent, affiliate, or subsidiary thereof and brief trips to the United States for business or pleasure shall not be interruptive of the one year of continuous employment abroad but such periods shall not be counted toward fulfillment of that requirement. [emphasis added]
A branch is defined as “an operating division or office of the same organization housed in a different location.” 8 CFR 214.2(l)(1)(ii)(J).
Next, it must be shown that both the US entity and the related entity abroad are both doing business. The regulations define doing business 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 in the United States and abroad.” 8 CFR 214.2(l)(1)(ii)(H).
Qualifying petitioners must show that the company “is or will be doing business …as an employer in the United States and in at least one other country directly or through a parent, branch, affiliate, or subsidiary.” This can be read as allowing the petitioner company to be doing business on its own in a foreign country without a related entity abroad.
Beyond the regulations, we also turn to the Board of Immigration Appeals in Matter of Chartier, 16 I&N Dec. 284 (BIA 1977) held that the Immigration and Nationality Act does not require a petitioning employer to have a qualifying legal entity abroad and the absence of such a legal entity does not preclude the beneficiary from qualifying as an intracompany transferee. Matter of Chartier, id., involved the deportation proceedings of a respondent who had entered as in L-1 nonimmigrant status after working in Canada for the U.S. petitioner. The petitioner did not have a legal entity established in Canada. After the filing of a labor certification, the District Director for the Immigration and Nationality Service Detroit office found that the respondent was not qualified for L-1 status due to the absence of petitioner's legal entity in Canada. Ultimately, respondent's deportation proceedings were terminated as the Board of Immigration Appeals found he could return to his previous job abroad working directly for the petitioner upon termination of L-1 status.
In Matter of Chartier, the BIA found that the INA “does not expressly require the employer to have a subsidiary or other legal entity abroad” and that there is “no reason why a distinction should be made between United States companies with subsidiaries abroad and United States companies with employees abroad who work directly for the parent company.” Id. at 284, 286-87. The BIA found “no reason why a distinction should be made between United States subsidiaries abroad and United States companies with employees abroad who work directly for the parent company.” Id. at 287-288.
The Law Offices of James D. Eiss has received approval on an L-1 case where no foreign entity existed. In that instance, the petitioner directly employed the beneficiary, who worked remotely abroad. We were able to get the L-1 petition approved citing Matter of Chartier and showing that the petitioner was actively doing business in countries other than the US. The doing business requirement was met by showing ongoing invoices to clients based around the world.
Prior results do not guarantee a similar outcome.
Contact the Law Offices of James D. Eiss today to discuss your L-1 possibilities.