L-1, Intracompany Transferees
L-1 status is available to key employees of multinational corporations whose transfer to the U.S. will facilitate company operations. There are two L-1 categories. L-1A status is for Managers and Executives and L-1B status is for employees with specialized knowledge. Both the petitioning employer and the alien transferee must meet certain qualifications before L-1 status can be granted.
In order to qualify as a petitioning L-1 employer, the company that will employ the alien in the U.S. must be related to the foreign company at which the alien has worked. The foreign and U.S. companies can be related as parent/subsidiary; one can be a branch office of the other; or they can be affiliates with a common parent.
The company must be doing business (or setting up operations with the intent to start 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 for the duration of the alien's stay in the United States as an intracompany transferee.
The alien must prove that s/he worked for a qualifying company abroad continuously, in a full-time capacity for one of the three years prior to the filing of the L-1 petition. The alien must also prove that s/he is qualified, through education and/or experience, to fill the position being offered to him or her in the United States.
L-1A Status (Managers & Executives)
In addition to the requirements above, L-1A beneficiaries must also prove that they have worked in a managerial, executive, or specialized knowledge capacity during the one year of employment abroad. In addition, they must show that they are coming to the U.S. to work in a managerial or executive capacity. The type of position filled abroad need not be the same as the type of position to be filled in the U.S. For example, someone may have gained their qualifying experience abroad in a specialized knowledge capacity, but may be entering the U.S. in L-1A status to act as a Manager. A managerial capacity is an assignment in 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;
- Has the authority to hire and fire or recommend those as well as other personnel actions (such as promotion and leave authorization) if another person is directly supervised; 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. A first-line supervisor is not considered to be acting in a managerial capacity merely by virtue of the supervisor's supervisory duties unless the employees supervised are professional.
An executive capacity is an assignment in the organization in which the employee primarily:
- Directs the management of the organization or a major component or function of the organization;
- Establishes the goals and policies of the organization; component, or function;
- Exercises wide latitude in discretionary decision-making; and
- Receives only general supervision or direction from higher level executives, the board of directors, or stockholders of the organization.
L-1B Status, Specialized Knowledge
L-1B beneficiaries must prove that they possess specialized knowledge of company operations. Specialized knowledge means: “a special knowledge possessed by an individual of the petitioning organization's product, service, research, equipment, techniques, management, or other interests and its application in international markets, or an advanced level of knowledge or expertise in the organization's processes or procedures.” The concept of specialized knowledge is slippery and ill-defined. It has been developed through agency memoranda and court cases.
Processing L-1s under NAFTA
Canadian citizens applying for L-1 status can opt to file their petitions in person at a Class A land port of entry or at an airport in Canada with Pre-Clearance operations, rather than filing by mail at a service center. If approvable, the petition can be approved on the spot, allowing the beneficiary to enter the U.S. in L-1 status immediately.
L-1 status may be approved initially for a three year period. The exception is for “new offices,” which have been doing business in the U.S. for less than one year at the time of filing. In those cases, the initial approval will be for one year only. For those in L-1B status, the maximum period of stay is 5 years. For those in L-1A status, the maximum period of stay is 7 years. The duration of each extension of stay is limited to 2 years.