Transfer Of Foreign Employees To The United States

Steven Tuan Pham, Esq.

In today's global economy, numerous companies utilize foreign professionals to achieve their business goals. Often times, companies have offices all over the world; and at times, they need to allocate their human resources to minimize cost while utilize the employees skills and experience to maximize profits. Thus, a smooth transfer of your company's key employees to the United States is always of great concern. Most executives, managers and employees with specialized knowledge can come to work in the United States using the L-1 intra-company transferee visa. An introduction to that visa, which includes changes made by the Immigration Act of 1990, is presented here. Be sure to consult with an experienced immigration attorney at Smith & Garg, LLC to see if this visa s appropriate for your situation.

Which Companies Qualify to Transfer Employees to the United States?

Only those companies that are the parent, a branch, a subsidiary or an affiliate qualify to petition for an L-1 intra-company transferee visa. USCIS will scrutinize the facts and analyze the relationship of the foreign and U.S. ownership of these companies. At the time of filing, the foreign company must still be in existence. Often, large companies do not have this problem. The problem arise in situations where the alien is a sole proprietor in the foreign company (sole proprietorship is the most common type of business in the world), and such alien sold or liquidate the business to invest in the United States. In such situation, usually the USCIS will reject the L-1 Application, unless the petitioner can show some how that the closed foreign business is a part of a larger business enterprise (perhaps family owned group of businesses) and such enterprise still exists.

Which Employees Qualify as L-1 Intra-company Transferees?

Intra-company transferees are executives, managers and employees with specialized knowledge. The definition of manager includes an employee who manages an essential function of the business within a qualifying organization. Specialized knowledge employees must have special knowledge of the organization's product, service, research, equipment, management, or other interests, and its application in international markets, or an advanced knowledge or expertise in the organization's processes and procedures. Classifying the employee in the right category is important, particularly if the company might later want to sponsor the employee for permanent residence. The intra-company transferee petition always should be structured to allow the easiest transition to permanent resident status.

A key qualification for all employees is continuous employment abroad with a qualifying foreign employer for one year within three years preceding the time of the employee's application for admission into the United States.

Can an alien open a new business in the U.S, and if so, what is the duration for the L-1 visa?

There are provisions to allow a new office to open in the United States provided that evidence is submitted to the Immigration Service to prove that the new office has a suitable place to do business, a qualifying business structure exists and that the employer has the ability to pay the employee and to begin doing business in the United States. Each case must be well-documented with evidence proving all of the legal criteria are met. If approved, the initial L-1A will be granted for 1 year. The alien should use this 1 year period to set-up the infrastructure of the organization, implement its business goals, and hire employees to show that the L-1A has executive capacity and manages employees. An L-1B should show that he/she is working in his/her specialized capacity. After the 1 year period, the alien can file for an extension, which generally will be granted from 2-3 years period.

How Long Can L-l Employees Remain in the United States?

The L-1 is a temporary visa with specific limitations on periods of stay in the United States. If the employee is qualified as a manager or executive, he or she may remain in the United States for up to seven years. If the employee is classified in the specialized knowledge category, he or she may stay up to five years. An exception to these limits exists where the employment in the United States is seasonal, intermittent or an aggregate of six months or less per year.

How Does the Company Get an L-l Visa for its Employees?

An L-1 visa must be filed by the company with USCIS in the Service Center that has jurisdiction over the place of intended employment. As stated above, a new company in the U.S. will have an initial 1-year period to start-up the company and to set up its infrastructure. An existing company can obtain a 3 years period in its initial filing. Subsequently, all companies can file for renewals in two-year increments up to the maximum permitted stay. If the employee is in the United States and maintaining some other legal status, he or she may apply for a change of status in the United States. Spouses and unmarried children under 21 years old of intra-company transferees may be granted L-2 visas. Unlike and E-2 visa holder, an L-2 visa holder is not permitted to work in the United States, but can attend school.

Can an L-1 visa holder obtain a green card?

Whether the L-1 visa can obtain a green card depends on his or her qualifications, skills, and experience. An employer can file an immigrant petition for its L-1 employee after working for at least one year in the U.S. However, whether an immigrant visa is available for such person depends on the category in which the alien qualifies. For L-1A, however, if the person can show that he/she is a multinational executive transferee (EB-1 Subcategory C), a green card is usually immediately available for aliens from most countries. However, L-1B applicants will have to file a PERM Labor Certification before he/she can apply for a green card.

If you need qualified legal assistance in obtaining a visa or help in effectuating a company transfer, contact the Houston Immigration Attorneys at Smith & Garg today! We are Global Immigration Attorneys Who Make Connections!