In order for a U.S. employer to transfer an executive or manager from one of their foreign offices to an office within the U.S., they must obtain an L-1A nonimmigrant classification. This classification also allows a foreign company that does not have an affiliated office within the U.S., to send an executive or manager to the U.S. in order to establish one. There are numerous challenges that need to be overcome in establishing a new office in the U.S. because it is the U.S. based entity/employer that files for the transfer.
The U.S. entity at the time of filing its first L-1A, must show that there is already a qualifying relationship with the foreign company and that the U.S. entity is, or will be, doing business in the United States and at least one other country directly or through a qualifying organization. Employees that are qualified to enter the U.S. under the L-1A classification, are only allowed a maximum initial stay of one year. Other qualified employees are allowed a maximum initial stay of up to three years. However, for all those classified under L-1A, they can request to have an extension of no more than 2 years, until they have reached a maximum limit of seven years.
- ensure that the petitioning U.S. entity has a qualifying relationship with the foreign company
- demonstrate that the manager or executive has worked the required amount of time abroad
- ensure that the manager or executive was employed in a qualifying capacity
- ensure that sufficient physical space is secured for a new office in the United States
- ensure that the new office is active and operating within one year after the admission
- file L1A if you have not secured sufficient office space in the U.S.
- file L1A if your U.S. office or foreign entity cannot support managerial or executive position within the first year of L1A approval
- send the transferee manager or executive to the interview at the U.S. consulate without proper preparation
- rush to file L-1A if you intend to establish the new office in the US and if your foreign entity is a small family-owned business
- learn the hard way how U.S. Citizenship & Immigration Services scrutinizes the L-1A petitions
When you petition for the manager or executive that has been employed by the foreign entity, make sure that you provide sufficient documentation evidencing that the new U.S. office has a corporate relationship with the foreign entity abroad. This means that the new U.S. office must be a parent, affiliate, subsidiary or branch of the existing foreign entity, and that both the U.S. office and the foreign entity continue to share common ownership and control. Under this classification, ownership is the legal right to have possession of an organization. Control refers to the legal or actual ability to exercise authority or influence over an organization. Evidence may include, but is not limited to, annual reports, detailed list of owners, meeting minutes, articles of incorporation or organization, partnership agreement and proof of stock purchases.
You need to show that the beneficiary of L-1A petition has the required amount of full-time employment in a managerial or executive position abroad with the qualifying foreign entity within three years before his or her application for admission to the U.S. The evidence may include pay stubs, payroll records, tax returns, evidence of work product, training records or a detailed letter from foreign entity’s Human Resource Department discussing the beneficiary’s history there.
Not every manager or executive may qualify for an L1A status. First-line supervisors, for example, are not considered managers unless the employees they supervise are professionals. This is an important consideration when choosing the right candidate. Another example includes shareholders that are being petitioned as executives. They are not considered executives unless they direct and oversee the management of the organization. If a manager or executive only performs day-to-day functions of the organization, L-1A will be denied.
While the amount of physical space may vary depending on the nature of the business, an appropriate space must be secured through lease, purchase or other means. Sufficiency of space must be demonstrated through proof. Evidence may include a complete copy of a U.S. entity’s lease, a thorough and credible business plan for the new entity and marketing materials or other descriptions of the business connecting the activity of the business with the space required.
The new office L-1 visa is meant to facilitate a “ramp up” period for a new U.S. office of a foreign entity. This period is limited to one year. After that time, an extension is available if the new office meets this requirement. The office may be considered active and operating if it has hired additional employees, fulfilled contract orders, and there is a revenue stream.
For successful L-1A processing, it is essential to show that the foreign entity secured sufficient office space and that, generally does not include virtual offices. Your L1A is likely to be denied it the office space is virtual, is not sufficient to operate the business or has not been secured yet.
Do not file L1A if your U.S. office or foreign entity cannot support managerial or executive position within the first year of L1A approval
Employment does not necessarily depend upon amount or existence of a salary, but it is imperative that the manager or execute is being compensated whether by a foreign entity or the U.S. entity. Your initial L1A petition will not be granted if you cannot show that the new office will support an executive or managerial position within one year of petition approval. Furthermore, your extension of L1A status can be denied if the salary does not correspond with a managerial or executive position. You need to show proof of capital contribution to the U.S. entity, business plan for commencing the start-up of the new office, and a letter from the foreign office explaining the need for the new office and how the proposed business venture will, within a year, support a managerial or executive capacity position.
Do not send the transferee manager or executive to the interview at the U.S. consulate without proper preparation
It is very important that your manager or executive is prepared for the interview and is in possession of the required documents to attend the interview as well as the entire package that was filed with U.S. Citizenship & Immigration Services.
Do not rush to file L-1A if you intend to establish the new office in the US and if your foreign entity is a small family-owned business
U.S. Citizenship and Immigration Services highly scrutinize initial filings of companies that intend to establish a new office in the U.S. Furthermore, it is not uncommon for the reviewing officer to request additional evidence (RFE) if the foreign business is small and family-owned. Thorough preparation is important and evidence establishing each required element must be present in each petition. An RFE will be issued if something is missing. An immigration attorney experienced in L-1A filing should be consulted.
Do not learn the hard way how U.S. Citizenship & Immigration Services scrutinizes the L-1A petitions
In order to prevent and/or overcome an RFE or Notice of Intent to Deny (NOID) from U.S. Citizenship & Immigration Services, it is highly advisable for the petitioner to retain an experience attorney because only a professional, who has ample experience in dealing with L1A filings for newly formed businesses and with RFEs and NOIDs, will be able to present the proper evidence that has been tailored to the regulations and practices of the U.S. Citizenship & Immigration Services.
This article provides general introductions as to what to expect when a newly formed U.S. based entity files an L1A petition for a manager or execute employed by a foreign entity with whom the U.S. entity has a qualifying relationship. This article identifies the initial obstacles and challenges and discusses how they can be overcome in order to get L1A visa successfully granted for foreign companies opening new offices in the United States.