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A Quick Reference Guide on Intra-Company (L-1) Visa
by Michael J. Gurfinkel, Esq.
Many overseas companies (including those in the
Philippines), have a branch office or a subsidiary in the U.S.
The company wants managers and other personnel from their overseas
office, whom they can trust and who have deep knowledge of their
operations, to run the branch office or subsidiary in the U.S.
These overseas personnel can legally enter, live and work in the
United States by obtaining an Intra-Company Transfer (L-1) Visa,
if they meet certain basic requirements. They can also bring along
their spouse and minor children, who will be issued L-2 visas.
To help people understand these basic requirements,
I have prepared a Quick Reference Guide for both Employers and
Employees to qualify for an L-1 Visa.
A. EMPLOYER/COMPANY
1. The company, which seeks to transfer or assign
an employee to its U.S. office or subsidiary, and for which the
employee has worked for a year abroad, must be "related"
to the U.S. company in a specific manner
-- The company abroad must be "the main office,
a branch, a subsidiary, or an affiliate" of the U.S. company.
2. The company must be doing business both
in the United States and one other country during the whole
period of transfer
-- The transferring company must continue to do
business outside the United States (i.e. export or import of goods
or services) during the entire period of the alien's stay in the
U.S. as an L-1 transferee.
B. EMPLOYEE
1. The employee must have worked outside the United
States for the overseas company for a continuous period of one
year in the past three years
-- Any time spent in the United States during that
time period does not bar the employee from being transferred,
but the time in the U.S. cannot be counted toward fulfilling the
one-year abroad requirement.
*For example, an alien who spent two months in
the United States during the preceding year must have worked for
the overseas company for at least 14 months, at least 12 of which
were outside of the U.S.
* For example, a person worked for a company
in the Philippines from May 1, 1995 to May 1, 1996, but was assigned
in the U.S. for two months from August 1, 1995 to September 30,
1995. He will not qualify for L-1 visa. He would have to work
for that company in the Philippines until July 1, 1996 to qualify,
to make up for the two months spent in the U.S.)
-- A year or more of part-time employment cannot
be added up to meet the one-year abroad requirement, unless the
employee has worked part-time for each of several foreign affiliates
of the U.S. company, and total employment time equals full-time
hours.
2. The employee to be transferred must have been
employed by the transferring overseas company in an "executive"
or "managerial" position, or a position involving "specialized
knowledge."
-- "Executives"
are those whose primary duties are to direct the management of
an organization or a major component of an organization, or a
function in the organization, and establish organization goals
and policies, exercise a wide latitude of discretionary decision-making,
and receive only general supervision from higher level executives,
the board of directors or shareholders of the company. This
position includes "vice president," "controller,"
etc.
-- "Managers" are those whose primary
duties are to direct the organization, a customarily recognized
department or subdivision of the company, or a function, who controls
the work of other professional, supervisory or managerial employees,
who has the power to hire and fire or recommend these actions
as well as other personnel actions, and who exercises discretionary
authority over day-to-day operations. This position includes
production, marketing, and other department managers, financial
managers, etc.
-- "Specialized knowledge"
employees are those who have: (1) a specialized knowledge of the
company product and its applications in international markets,
or (2) an advanced level of knowledge of processes and procedures
of the company. This position could include production supervisors,
engineers, financial or management analysts, etc.
3. The employee must be coming to the U.S. company
to fill one of these capacities (executive, managerial, or specialized
knowledge)
-- The employee does not have to fill the same capacity
in the United States that he or she filled abroad. For example,
a "specialized knowledge" employee abroad may be coming
to the U.S. to fill a managerial position. The position to be
filled in the U.S. need not be the same position they worked at
outside the U.S., as long as the position in the U.S. is categorized
as executive, managerial, or specialized knowledge level.
4. The employee must be qualified for the position
by virtue of his or her prior education and experience
-- The alien must present proof of his qualification
for the job with the L-1 application, such as college transcripts,
resumes, certificates of employment, diplomas, etc. The alien
need not be a college graduate, as long as his experience and
expertise can satisfy the requirements for the position. If, for
example, the U.S. company is a subsidiary of a restaurant in the
Philippines, the manager of the U.S. subsidiary need not be a
college graduate, but he must have extensive experience in managing
a restaurant.
5. The L-1 alien must intend to depart the United
States upon completion of his or her authorized stay (including
extensions), but may also pursue permanent residence (green card)
at the same time
-- For most companies, a simple statement that the
transferee temporarily will depart the U.S. upon completion of
his or her authorized stay is sufficient. When the transferee
is also an owner/operator of the company, however, the papers
must be accompanied by evidence that the employee will not remain
indefinitely or permanently in the country.
-- A consular officer cannot deny an L-1 visa even
if an L-1 applicant openly expresses an intent to seek permanent
residence in the U.S. Thus, an L-1 visa holder may seek other
ways to obtain permanent residence in the U.S., such as through
a Labor Certification process or through Relative Petition
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