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L-1
Intracompany
Transferee Visa:
Excerpts from the
State Department
Foreign
Affairs Manual
By:
Gary Chodorow
Revised: May 25,
2007
41.54
N1--INTRODUCTION
a. Section 1(b) of
Public Law 91-225 of
April 7, 1970,
created a
nonimmigrant visa (NIV)
classification at
INA 101(a)(15)(L)
for intra-company
transferees. An
individual or
blanket petition,
approved by U.S.
Citizenship and
Immigration Services
(USCIS), is a
prerequisite for L
visa issuance.
b. The L
nonimmigrant
classification was
created to permit
international
companies to
temporarily transfer
qualified employees
to the United States
for the purpose of
improving management
effectiveness,
expanding U.S.
exports, and
enhancing
competitiveness in
markets abroad.
Prior to the
enactment of Public
Law 91-225, no
nonimmigrant
classification
existed which fully
met the needs of
intra-company
transferees. Those
who did not qualify
as E nonimmigrants
were forced to apply
for immigrant visas
(IV) to the United
States, even if
there was no intent
to reside
permanently.
c. INA 101(a)(15)(L)
was amended for the
first time by the
Immigration Act of
1990 (Public Law
101-649 of November
29, 1990) to provide
that the required
one-year period of
continuous prior
employment with the
petitioner take
place within three
years, rather than
immediately
preceding the time
of the alien's
application for
admission into the
United States.
41.54
N2--CLASSIFICATION
CRITERIA FOR
INTRA-COMPANY
TRANSFEREES
41.54
N2.1--Individual
Petitions
The following
elements are
considered in
evaluating
entitlement to L-1
classification in
individual petition
cases:
(1)
The petitioner is
the same firm,
corporation, or
other legal entity,
or parent, branch,
affiliate or
subsidiary thereof,
for whom the
beneficiary has been
employed abroad (see
41.54 N7 below);
(2) The beneficiary
is a manager,
executive, or an
alien having
specialized
knowledge, and is
destined to a
managerial or
executive position
or a position
requiring
specialized
knowledge (see 9 FAM
41.54 N8 below);
(3) The petitioner
and beneficiary have
the requisite
employer-employee
relationship (see
41.54 N9 below);
(4) The petitioner
will continue to do
business in the
United States and at
least one other
country (see 41.54
N10 below);
(5) The beneficiary
meets the
requirement of
having had one year
of prior continuous
qualifying
experience within
the previous three
years (see 41.54 N11
below);
(6) If the
beneficiary is
coming to open, or
be employed in, a
new office, the
requirements
described in 41.54
N12 are met;
(7) The beneficiary
is not subject to
the limitation on
readmission for
former L and H
aliens (see 41.54
N19 below), or the
two-year foreign
residence
requirement for
former exchange
visitors (see 41.54
N24 below); and
(8) The beneficiary
is not subject to
the intending
immigrant
presumption of INA
214 A (see 41.54 N4
below).
41.54 N2.2--Blanket
Petitions
In addition to those
elements listed in
41.54 N2.1 above,
the characteristics
considered in
evaluating
entitlement to L-1
classification in
blanket petition
cases are specified
below. (See 41.54
N14 below for a full
description of the
qualifying
requirements and
processing
procedures for
blanket petition
cases.)
(1)
The petitioner and
its entities meet
the requirements of
size, structure, and
scope of business
activities for
approval of L
blanket petitions
(see 41.54 N14.2
below);
(2) The petitioner
is a manager,
executive, or
specialized
knowledge
professional and is
destined to a
position for a
manager, executive
or specialized
knowledge
professional (see
41.54 N14.3 below);
(3) The beneficiary
is not coming to
open or be employed
in a new office (see
41.54 N14.3 below);
and
(4) The petitioner
has not filed an
individual L
petition for the
alien (see 41.54
N14.3 below).
41.54
N3--SIGNIFICANCE OF
APPROVED PETITION
41.54 N3.1--The
Department of
Homeland Security
(DHS) is Responsible
for Adjudicating L
Petitions
a. By mandating a
preliminary
petition, Congress
placed
responsibility and
authority with the
Department of
Homeland Security
(DHS) to determine
whether the
requirements for L
status, which are
examined in the
petition process,
have been met. An
approved Form I-129,
Petition for a
Nonimmigrant Worker,
or evidence that the
L petition has been
approved (an
acceptable Form
I-797, Notice of
Action (see 41.54
N13.4 below), or
telegraphic or
telephonic
notification from
DHS or the
Department) is, in
itself, to be
considered by
consular officers as
prima facie evidence
that in the case of
a(n):
(1)
Individual petition,
the petitioner and
alien beneficiary
meet the
requirements for L
status; or
(2) Blanket petition
(see 41.54 N14
below), the
petitioner and its
parent, branches,
affiliates, or
subsidiaries
specified in the
petition are
qualifying
organizations under
INA 101(a)(15)(L).
b.
The large majority
of approved L
petitions is valid,
and involves bona
fide establishments,
relationships, and
individual
qualifications which
conform to the DHS
regulations in
effect at the time
the L petition was
filed.
41.54 N3.2--Consular
Officers'
Responsibilities
41.54
N3.2-1--Verifying
Qualifications of
Blanket Petition
Beneficiaries
Since the individual
beneficiaries of
blanket petitions
are not named in the
petition, their
eligibility for L
status is not
examined by DHS.
Consequently,
consular officers
(or, in the case of
visa-exempt aliens,
immigration
officers) are
responsible for
verifying the
qualifications of
alien applicants for
L classification in
blanket petition
cases (also see
41.54 N14.5 below).
41.54
N3.2-2--Determining
Visa Eligibility
Consular officers do
not have the
authority to
question the
approval of L
petitions without
specific evidence,
unavailable to DHS
at the time of
petition approval,
that the requisites
of INA 101(a)(15)(L)
have not been met.
On the other hand,
the approval of a
petition by DHS does
not relieve the
alien of the burden
of establishing visa
eligibility. If the
consular officer has
reason to believe,
based upon
information
developed during the
visa interview or
other evidence which
was not available to
DHS, that the
petitioner or
beneficiary may not
be entitled to
status, the consular
officer may request
any additional
evidence which bears
a reasonable
relationship to this
issue. Disagreement
with DHS
interpretation of
the law or the
facts, however, is
not sufficient
reason to ask DHS to
reconsider its
approval of the
petition.
41.54
N3.2-3--Referring
Approved L Petition
to U.S. Citizenship
and Immigration
Services (USCIS) for
Reconsideration
You must consider
all approved L
petitions in light
of these Notes,
process with
dispatch those cases
which appear
legitimate, and
identify those which
require local
investigation or
referral to the
approving U.S.
Citizenship and
Immigration Services
(USCIS) office for
reconsideration.
Posts should refer
cases to USCIS for
reconsideration
sparingly, to avoid
inconveniencing bona
fide petitioners and
beneficiaries and
causing duplication
of effort by USCIS.
You must have
specific evidence of
a requirement for
automatic
revocation, lack of
qualification on the
part of the
beneficiary,
misrepresentation in
the petition process
or of previously
unknown facts, which
might alter USCIS'
finding, before
requesting approval
of a review of the
Form I-129, Petition
for a Nonimmigrant
Worker. When seeking
reconsideration, the
consular officer
shall, under cover
of Form DS-3096,
Consular Return/Case
Transfer Cover
Sheet, forward the
petition, all
pertinent
documentation, and a
written memorandum
of the evidence
supporting the
request for
reconsideration to
the Kentucky
Consular Center (KCC),
which will forward
the request to the
approving USCIS
office. The KCC will
maintain a copy of
the request and all
supporting
documentation, and
will track all
consular revocation
requests.
You are no longer
required to maintain
a copy of all
documents, although
scanning the
revocation request
and supporting
documents into the
case file is
recommended.
41.54 N4--ISSUE
OF TEMPORARINESS OF
STAY
L aliens are
specifically
excluded from the
intending immigrant
presumption of
section 214(b) of
the INA and are,
furthermore, not
required to have a
residence abroad
which they have no
intention of
abandoning. In
addition, INA 214(h)
provides the fact
that an alien has
sought permanent
residence in the
United States does
not preclude him or
her from obtaining
an L nonimmigrant
visa (NIV) or
otherwise obtaining
or maintaining that
status.
The alien may
legitimately come to
the United States as
a nonimmigrant under
the L classification
and depart
voluntarily at the
end of his or her
authorized stay,
and, at the same
time, lawfully seek
to become a
permanent resident
of the United
States.
Consequently, the
consular officer's
evaluation of an
applicant's
eligibility for an L
visa shall not focus
on the issue of
temporariness of
stay or immigrant
intent.
41.54
N6--''INTRA-COMPANY
TRANSFEREE''
''Intra-company
transferee'' means
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,
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.
41.54 N7--STATUS OF
PETITIONER
For the purposes of
the L
classification, a
petitioner is a
qualifying
organization
desiring to bring an
alien to the United
States as an L-1
nonimmigrant. It
must be a parent,
branch, affiliate,
or subsidiary of the
same employer for
whom the alien has
been employed abroad
prior to entry.
The petitioner may
be either a U.S. or
foreign
organization.
41.54
N7.1--''Business
Entities''
The Department of
Homeland Security
(DHS) uses the
following
definitions and
descriptions of
business entities in
adjudicating L
petitions.
41.54
N7.1-1--''Qualifying
Organization''
''Qualifying
organization'' means
a U.S. or foreign
firm, corporation,
or other legal
entity which:
(1)
Meets exactly one of
the qualifying
relationships
specified in the
definitions of a
parent, branch,
affiliate or
subsidiary;
(2) Is or will be
doing business
(engaging in
international trade
is not required) 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
intra-company
transferee; and
(3) Otherwise meets
the requirements of
INA 101(a)(15)(L).
41.54
N7.1-2--''Parent''
''Parent'' means a
firm, corporation,
or other legal
entity, which has
subsidiaries. Any
business entity,
which has
subsidiaries, is a
parent.
However, a
subsidiary may own
other subsidiaries
and also be a
parent, even though
it has an ultimate
parent.
41.54
N7.1-3--''Branch''
''Branch'' means an
operating division
or office of the
same organization
housed in a
different location.
Any such office or
operating division,
which is not
established as a
separate business
entity, is
considered a branch.
41.54
N7.1-4--''Subsidiary''
a. ''Subsidiary''
means a firm,
corporation, or
other legal entity
of which a parent
owns, directly or
indirectly:
(1)
More than half of
the entity and
controls the entity;
or
(2) Half of the
entity and controls
the entity; or
(3) 50 percent of a
50-50 joint venture
and has equal
control and veto
power over the
entity; or
(4) Less than half
of the entity, but
in fact controls the
entity.
b.
The 50-50 joint
venture can be owned
and controlled by
only two legal
entities; all other
combinations of a
joint venture do not
qualify as a
subsidiary. A
contractual joint
venture does not
qualify as a
subsidiary.
A parent may own
less than half of
the entity but have
control because the
other stock is
widely dispersed
among minor
stockholders; for
example, when an
individual or
company acquires
sufficient shares of
a publicly held
company to be able
to nominate and
elect the board of
directors.
41.54
N7.1-5--''Affiliate''
a. ''Affiliate''
means:
(1)
One of two
subsidiaries, both
of which are owned
and controlled by
the same parent or
individual; or
(2) One of two legal
entities owned and
controlled by the
same group of
individuals, each
individual owning
and controlling
approximately the
same share or
proportion of each
entity; or
(3) In the case of a
partnership that is
organized in the
United States to
provide accounting
services along with
managerial and/or
consulting services
and that markets its
accounting services
under an
internationally
recognized name
under an agreement
with a worldwide
coordinating
organization that is
owned and controlled
by the member
accounting firms, a
partnership (or
similar
organization) that
is organized outside
the United States to
provide accounting
services shall be
considered to be an
affiliate of the
U.S. partnership if
it markets its
accounting services
under the same
internationally
recognized name
under the agreement
with the worldwide
coordinating
organization of
which the U.S.
partnership is also
a member.
b.
Subsidiaries are
affiliates of each
other. The affiliate
relationship arises
from the common
ownership and
control of both
subsidiaries by the
same legal entity.
Affiliation also
exists between legal
entities where an
identical group of
individuals owns and
controls both
businesses in
basically the same
proportions or
percentages.
Associations between
companies based on
factors such as
ownership of a small
amount of stock in
another company,
exchange of products
or services,
licensing or
franchising
agreements,
membership on boards
of directors, or the
formation of
consortiums or
cartels do not
create affiliate
relationships
between the entities
for L purposes.
41.54
N7.2--Relationship
between Petitioner
and Other Business
Entities
For L classification
purposes, ownership
and control are the
factors, which,
establish a
qualifying
relationship between
a petitioner and
other business
entities. Both the
U.S. and foreign
businesses must be
legal entities.
In the United
States, a business
is usually in the
form of a
corporation,
partnership, or
proprietorship.
''Ownership'' means
the legal right of
possession with full
power and authority
to control.
''Control'' means
the right and
authority to direct
the management and
operations of the
business entity.
41.54
N7.3--Nonprofit
Organizations
An organized
religious,
charitable, service,
or other nonprofit
organization must
demonstrate that it
is ''...a firm or
corporation or other
legal entity or an
affiliate or
subsidiary
thereof...'' just as
commercial
businesses must do
to qualify for L
status. Nonprofit
organizations are
eligible to file
individual petitions
but not blanket
petitions (see 41.54
N14.2 (b) below).
41.54 N7.4--Evidence
Required by the
Department of
Homeland Security
(DHS) in Determining
Petitioner's Status
The Department of
Homeland Security
(DHS) regulations do
not ordinarily
require submission
of extensive
evidence of the
petitioning
organization's
corporate structure.
In questionable
cases, however, DHS
may seek whatever
evidence is deemed
necessary, including
certified audits,
balance sheets,
profit and loss
statements,
non-certified audits
(reviews,
compilations),
annual reports, tax
records, etc.
41.54 N7.5--Size and
Scope of Operation
While the
petitioner's size
does not limit its
use of the
intra-company
transferee category
(except for access
to the blanket
petition provision),
DHS regulations do
require that the
petitioning
organization
demonstrate its
ongoing
international nature
by continuing to do
business in the
United States and
abroad. (See 41.54
N10 below.)
41.54
N7.6--Corporation is
Separate Legal
Entity From Owners
A corporation is a
separate legal
entity from its
owners or
stockholders for the
purpose of
qualifying an alien
beneficiary as an
intra-company
transferee under INA
101(a)(15)(L). A
corporation may
employ and petition
for its owners, even
a sole owner.
41.54 N8--NATURE
OF SERVICES
PERFORMED
In order to be
classifiable under
INA 101(a)(15)(L),
the services
performed by the
alien abroad, and
those to be
performed in the
United States, must
involve either
''managerial
capacity'',
''executive
capacity'', or
''specialized
knowledge''. The
beneficiary of a
blanket petition
must meet the higher
standard of being a
''specialized
knowledge
professional'',
rather than merely
possessing
specialized
knowledge.
41.54
N8.1--''Qualifying
Positions''
The following
definitions are used
by DHS in evaluating
the positions to
which L aliens are
destined.
41.54
N8.1-1--''Managerial
Capacity''
''Managerial
capacity'' means an
assignment within an
organization in
which the employee
primarily:
(1)
Manages the
organization, or a
department,
subdivision,
function, or
component of the
organization;
(2) 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;
(3) Has the
authority to hire
and fire or
recommend those as
well as other
personnel actions
(such as promotion
and leave
authorization) if
another employee or
other employees are
directly supervised.
If no other employee
is directly
supervised,
functions at a
senior level within
the organizational
hierarchy or with
respect to the
function managed;
and
(4) 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
his or her
supervisory duties
unless the employees
supervised are
professional.
41.54
N8.1-2--''Executive
Capacity''
''Executive
capacity'' means an
assignment within an
organization in
which the employee
primarily:
(1)
Directs the
management of the
organization or a
major component or
function of the
organization;
(2) Establishes the
goals and policies
of the organization,
component, or
function;
(3) Exercises wide
latitude in
discretionary
decision-making; and
(4) Receives only
general supervision,
or, direction from
higher level
executives, the
board of directors,
or stockholders of
the organization.
41.54
N8.1-3--''Specialized
Knowledge''
''Specialized
knowledge'' means
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 and
procedures.
41.54
N8.1-4--''Specialized
Knowledge
Professional''
''Specialized
knowledge
professional'' means
an individual who
has specialized
knowledge as defined
above and is a
member of the
professions as
specified in INA
101(a)(32).
41.54
N8.2--Guidelines for
Determining
Managerial,
Executive,
Specialized
Knowledge, and
Specialized
Knowledge
Professional
Capacity
41.54
N8.2-1--Managerial
or Executive
Capacity
a. An executive or
managerial capacity
requires a high
level of authority
and a broad range of
job
responsibilities.
Managers and
executives plan,
organize, direct,
and control an
organization's major
functions and work
through other
employees to achieve
the organization's
goals. In
determining whether
an alien supervises
others, independent
contractors as well
as company employees
can be considered.
The duties of a
position must
primarily be of an
executive or
managerial nature,
and a majority of
the executive's, or
manager's time must
be spent on duties
relating to policy
or operational
management. This
does not mean that
the executive or
manager cannot
regularly apply his
or her professional
expertise to a
particular problem.
The definitions do
not exclude
activities that are
common to managerial
or executive
positions such as
customer and public
relations, lobbying,
and contracting.
b. An executive or
manager may direct a
function within an
organization. In
general, however,
individuals who
control and directly
perform a function
within an
organization, but do
not have subordinate
staff (except
perhaps a personal
staff), are more
appropriately
considered
specialized
knowledge employees.
c. If a small or
medium-sized
business supports a
position wherein the
duties are primarily
executive or
managerial, it can
qualify under the L
category. However,
neither the title of
a position nor
ownership of the
business, are, by
themselves,
indicators of
managerial or
executive capacity.
The sole employee of
a company may
qualify as an
executive or
manager, for L visa
purposes, provided
his or her primary
function is to plan,
organize, direct and
control an
organization's major
functions through
other people.
41.54
N8.2-2--Specialized
Knowledge Capacity
a. To serve in a
specialized
knowledge capacity,
the alien's
knowledge must
different from or
surpass the ordinary
or usual knowledge
of an employee in
the particular
field, and must have
been gained through
significant prior
experience with the
petitioning
organization. A
specialized
knowledge employee
must have an
advanced level of
expertise in his or
her organization's
processes and
procedures or
special knowledge of
the organization,
which is not readily
available in the
United States labor
market.
b. Some
characteristics of
an employee who has
specialized
knowledge are that
he or she:
(1)
Possesses knowledge
that is valuable to
the employer's
competitiveness in
the market place;
(2) Is uniquely
qualified to
contribute to the
U.S. employer's
knowledge of foreign
operating
conditions;
(3) Has been
utilized as a key
employee abroad and
has been given
significant
assignments which
have enhanced the
employer's
productivity,
competitiveness,
image, or financial
position; and
(4) Possesses
knowledge, which can
be gained only
through extensive
prior experience
with the employer.
c.
The questionnaire
used by DHS
adjudicators in
evaluating the
merits of
''specialized
knowledge''
petitions is found
in 41.54 Exhibit I.
41.54
N8.2-3--Specialized
Knowledge
Professional
Capacity
A specialized
knowledge
professional must
possess the special
or unusual knowledge
specified in 41.54
N8.2-2 above, and a
member of a
profession as
described in INA
101(a)(32). To
qualify under the
blanket petition
provision (see 41.54
N14 below), an alien
must be a manager,
executive or
specialized
knowledge
professional.
41.54 N8.3--L Status
Not Applicable to
Skilled Workers
Petitions to accord
L status may be
approved for persons
with specialized
knowledge, but not
for persons who are
merely skilled
workers. Being a
''skilled worker''
(i.e., one whose
skill and knowledge
enable one to
produce a product
through physical or
skilled labor) does
not in itself
qualify an alien for
the ''specialized
knowledge''
category.
Specialized
knowledge capability
is based on the
beneficiary's
special knowledge of
a business firm's
product or service,
management
operations,
decision-making
process, or similar
elements that is not
readily available in
the U.S. labor
market, rather than
on his or her level
of training or
skill. INA
101(a)(15)(L) was
not intended to
alleviate or remedy
a shortage of U.S.
workers; the
temporary worker
provisions of INA
101(a)(15)(H)
provide the
appropriate means
for the admission of
workers who are in
short supply in the
United States.
41.54
N8.4--Beneficiary
Need Not Perform
Same Work in United
States as Abroad
To qualify for an L
visa, the
beneficiary must be
assigned to a
position in the
United States in
either the same
category (i.e.,
managerial,
executive, or
involving
specialized
knowledge) as the
position held
abroad, or in one of
the other qualifying
categories. The
beneficiary need not
be coming to perform
the same work that
was performed
abroad. Promotions
within the
qualifying
categories are
possible (e.g., from
specialized
knowledge employee
to manager).
41.54
N8.5--Full-time
Service Required but
Not Entirely in
United States
In general, the
intent of the L-1
classification is
the intra-company
transfer to the
United States of
full-time executive,
management, or
specialized
knowledge personnel.
However, while
full-time employment
by the beneficiary
is anticipated, INA
101(a)(15)(L) does
not require that the
beneficiary perform
full-time services
within the United
States. An executive
of a company with
branch offices in
Canada and the
United States, for
example, could
divide normal work
hours between those
offices and still
qualify for an L-1
visa. The alien's
principal purpose
while in the United
States, however,
must be consistent
with L status.
Therefore, if an
alien lived in the
United States and
commuted to
employment in Canada
or Mexico, and only
occasionally worked
in the United
States, the alien
would normally not
qualify for L-1
status since the
principal purpose
for being in the
United States would
not relate to L
employment. An alien
who lived in Canada
and came to the
United States
occasionally to work
as an executive for
the U.S. branch
operation, however,
would normally
qualify for L-1
status since that
alien's principal
purpose for coming
to the United States
would be consistent
with L
classification.
41.54
N9--EMPLOYER-EMPLOYEE
RELATIONSHIP
The essential
element in
determining the
existence of an
''employer-employee''
relationship is the
right of control,
that is, the right
of the employer to
order and control
the employee in the
performance of his
or her work.
Possession of the
authority to engage
or the authority to
discharge is very
strong evidence of
the existence of an
employer-employee
relationship.
41.54 N9.1--Source
of Remuneration and
Benefits Not
Controlling
The source of the
beneficiary's salary
and benefits while
in the United States
(i.e., whether the
beneficiary will be
paid by the U.S. or
foreign affiliate of
the petitioning
company) is not
controlling in
determining
eligibility for L
status. In addition,
the
employer-employee
relationship
encompasses a
situation in which
the beneficiary will
not be paid directly
by the petitioner,
and such a
beneficiary is not
precluded from
establishing
eligibility for L
classification.
41.54
N9.2--Employment in
United States
Directly by Foreign
Company Not
Qualifying
A beneficiary who
will be employed in
the United States
directly by a
foreign company and
who will not be
controlled in any
way by (and thus, in
fact, not have any
employment
relationship to) the
foreign company's
office in the United
States does not
qualify as an
intra-company
transferee.
41.54
N10--PETITIONER MUST
BE DOING BUSINESS IN
UNITED STATES AND AT
LEAST ONE OTHER
COUNTRY
41.54 N10.1--''Doing
Business''
(TL:VISA-73;
02-05-1993)
''Doing business''
means 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.
41.54
N10.2--Criteria for
''Doing Business''
(TL:VISA-73;
02-05-1993)
A qualifying
organization under
INA 101(a)(15)(L)
must, for the
duration of the
intra-company
transferee's stay in
the United States,
be doing business
(engaging in
international trade
is not required) as
an employer in the
United States and in
at least one other
country. (For
employees coming to
open or be employed
in a new office in
the United States,
(see 41.54 N12
below). Company
representatives and
liaison offices
which provide
services in the
United States, even
if the services are
to a company outside
the United States,
are included in the
''doing business''
definition and
aliens who perform
such services may
qualify for L-1
status.
41.54
N10.3--Transfer to
United States of
Employees Unattached
to Foreign Entity
(TL:VISA-73;
02-05-1993)
A U.S. company,
which is doing
business, as an
employer in the
United States and in
at least one foreign
country, can utilize
the L classification
to transfer to the
United States,
employees abroad who
are unattached to a
foreign entity. The
reverse of this
situation, however,
is not appropriate.
A foreign
organization must
have, or be in the
process of
establishing, a
legal entity in the
United States which
is, or will be,
doing business as an
employer in order to
transfer an employee
under section
101(a)(15)(L).
41.54
N10.4--Organization
Must Demonstrate
Ongoing
International Nature
(CT:VISA-803;
04-27-2006)
The DHS regulations
require a qualifying
organization to
demonstrate its
ongoing
international
nature. The L
classification was
not created for
self-employed
persons to enter the
United States to
continue
self-employment
(unless they are
otherwise qualified
for L status), nor
was the L
classification
intended to
accommodate the
complete relocation
of foreign
businesses to the
United States.
41.54
N11--QUALIFYING
EXPERIENCE
REQUIREMENT
(TL:VISA-464;
09-23-2002)
INA 101(a)(15)(L)
requires the
beneficiary of an
intra-company
transferee petition
to have been
employed
continuously by the
petitioner, or by an
affiliate or
subsidiary thereof,
for one year within
the three years
preceding the
beneficiary's
application for
admission into the
United States. The
beneficiary of an
intra-company
transferee petition
does not pertain to
those aliens listed
under a blanket
petition whose
employment must have
been with the
organization abroad
for six months
within the last
three years.
(See 41.54 N14.5.)
41.54
N11.1--Requiring
Prior Continuous
One-year, Full-time
Employment
(TL:VISA-73;
02-05-1993)
a.
While not expressly
stated in the INA or
regulations, INA
101(a)(15)(L)
contemplates that
the beneficiary's
qualifying
experience with the
petitioner must have
been continuous
full-time
employment, and not
continuous part-time
employment. Several
years of part-time
employment equaling
one year in
aggregate cannot be
viewed as meeting
the requirement.
b. Full-time
services divided
among affiliated
companies, each
using the employee
on a part-time
basis, however,
constitute full-time
employment if the
aggregate time meets
or exceeds the hours
of a full-time
position.
41.54
N11.2--Requiring
Prior Continuous
One-year Employment
Abroad
(TL:VISA-73;
02-05-1993)
The beneficiary's
one year of
qualifying
experience with the
petitioner must be
wholly outside the
United States. Time
spent working for
the petitioning firm
in the United States
does not qualify.
41.54 N11.3--Time in
United States for
Foreign Employer or
Brief
Business/Pleasure
Trips Not To
Interrupt Continuity
of Employment Abroad
(TL:VISA-73;
02-05-1993)
Periods spent in the
United States in any
authorized capacity
on behalf of the
foreign employer or
a parent, branch,
affiliate, or
subsidiary thereof,
and brief trips to
the United States
for business or
pleasure, do not
interrupt the
continuity of the
one year of
continuous
employment abroad
for L-1 status, but
do not count toward
fulfillment of that
requirement. Such
periods spent in the
United States may
follow the year of
employment abroad
and immediately
precede application
for L-1 status, so
long as the required
one-year of
qualifying
employment during
the past three years
has been served
abroad.
41.54
N12--OPENING OF NEW
OFFICE
41.54 N12.1--''New
Office''
(TL:VISA-73;
02-05-1993)
''New office'' means
an organization,
which has been doing
business in the
United States
through a parent,
branch, affiliate,
or subsidiary for
less than one year.
41.54
N12.2--Qualified
Employees of New
Offices May Receive
L Status
(TL:VISA-73;
02-05-1993)
INA 101(a)(15)(L)
does not require the
beneficiary of an L
petition to be
coming for
employment at a
pre-existing, U.S.
based office of the
employer.
A petition may be
approved for a
beneficiary who is
otherwise
classifiable under
INA 101(a)(15)(L)
and who is coming to
establish an office
(i.e., commence
business) in the
United States for
the petitioner. An
alien in a
managerial,
executive, or
specialized
knowledge capacity
may come to open or
be employed in a new
office.
41.54
N12.3--Managers and
Executives
Establishing or
Joining New Office
(TL:VISA-73;
02-05-1993)
a. A
petitioner who seeks
L status for a
manager or executive
coming to open or to
be employed in a new
office must submit
evidence:
(1)
That sufficient
physical premises to
house the new office
have been secured;
(2) That the
beneficiary was
employed for one
continuous year in
the three-year
period preceding the
filing of the
petition in an
executive or
managerial capacity
and that the
proposed employment
involves executive
or managerial
authority over the
new operation; and
(3) That the
intended U.S.
operation, within
one year of approval
of the petition,
will support an
executive or
managerial position.
b.
While it is expected
that a manager or
executive in a new
office will be more
than normally
involved in
day-to-day
operations during
the initial phases
of the business, he
or she must also
have authority and
plans to hire staff
and have wide
latitude in making
decisions about the
goals and management
of the organization.
41.54 N12.4--Aliens
with Specialized
Knowledge
Establishing or
Joining New Office
(TL:VISA-73;
02-05-1993)
A petitioner seeking
the entry of an
alien with
specialized
knowledge to open or
be employed in a new
office must
demonstrate that:
(1)
Sufficient physical
premises to house
the new office have
been secured;
(2) The business
entity in the United
States is or will be
a qualifying
organization as
described in 41.54
N7.1-1; and
(3) The petitioner
has the financial
ability to
remunerate the
beneficiary and to
commence doing
business in the
United States.
41.54
N12.5--Petition
Validity for
Employees of New
Offices Limited to
One Year
(TL:VISA-323;
10-10-2001)
A petition for a
qualified employee
of a new office will
be approved for a
period not to exceed
one year, after
which the petitioner
must demonstrate
that it is doing
business as defined
in 41.54 N10 above
in order for the
petition and alien's
stay to be extended
beyond one year.
41.54
N13--INDIVIDUAL
PETITION PROCEDURES
41.54 N13.1--Using
Form I-129, Petition
for a Nonimmigrant
Worker, to File
Individual Petition
(CT:VISA-803;
04-27-2006)
An employer must
file Form I-129,
Petition for a
Nonimmigrant Worker,
with DHS to accord
status as an
intra-company
transferee. Form
I-129 is also used
to request
extensions of
petition validity
and extensions of
stay in L status.
The form must be
filed with the DHS
Service Center,
which has
jurisdiction over
the area where the
alien will perform
services.
41.54 N13.2--Filing
of Individual
Petitions for
Canadian Citizens
(CT:VISA-803;
04-27-2006)
a. A
U.S. or foreign
employer seeking to
classify a citizen
of Canada as an
intra-company
transferee may file
an individual
petition in
duplicate on Form
I-129, Petition for
a Nonimmigrant
Worker in
conjunction with the
Canadian citizen's
application for
admission. A
Canadian citizen may
present Form I-129,
along with
supporting
documentation, to an
immigration officer
at a Class A port of
entry (POE), a U.S.
airport handling
international
traffic, or a U.S.
pre-clearance or
pre-flight station
at the time of
applying for
admission. The
petitioning employer
need not appear, but
the Form I-129 must
bear the authorized
signature of the
petitioner.
b. The availability
of the above
procedure does not
preclude the advance
filing of an
individual petition
with DHS, in which
case the beneficiary
may present a copy
of the approved Form
I-797, Notice of
Action, at a POE.
41.54
N13.3--Notifying
Petitioner of
Petition Approval
(CT:VISA-803;
04-27-2006)
The DHS uses Form
I-797, Notice of
Action, to notify
the petitioner that
the L petition filed
by the petitioner
has been approved.
The DHS must notify
the petitioner of
the approval of an
individual or
blanket petition
within 30 days after
a completed petition
has been filed. Form
I-797 is also used
to advise the
petitioner that an
extension of
petition validity
and extension of
stay in L status for
the employee has
been granted. The
petitioner may
furnish Form I-797
to the employee for
the purpose of
applying for his or
her L visa, or to
facilitate the
employee's entry
into the United
States, either
initially or after a
temporary absence
abroad during the
employee's stay in L
status.
41.54
N13.4--Evidence
Forming Basis for L
Visa Issuance
(CT:VISA-803;
04-27-2006)
The appropriate
evidence forming the
basis for L visa
issuance consists of
an approved Form
I-129, Petition for
a Nonimmigrant
Worker, telegraphic
or telephonic
notification from
DHS or the
Department of the
approval of such a
petition, or a Form
I-797, Notice of
Action, presented by
the visa applicant,
which shows that the
petition on his or
her behalf has been
approved or that his
or her authorized
stay in L status has
been extended. This
Form I-797, printed
on blue paper, must
include the date of
the notice, the name
of the petitioner,
the name of the
beneficiary, the
petition/receipt
number, the
expiration date of
the petition, and
the name, address,
and telephone number
of the approving DHS
office. It is a
computer-generated
form and is not
signed. The only
Form I-797, which is
valid for visa
issuance, is one
which, at minimum,
contains the above
information. If a
post has any
question regarding
the bona fides of a
particular Form
I-797, it should
query the
originating DHS
office directly.
41.54
N14--BLANKET
PETITION PROCEDURES
41.54 N14.1--Using
Form I-129, Petition
for a Nonimmigrant
Worker, to File
Blanket Petition
(CT:VISA-803;
04-27-2006)
Certain petitioners
seeking the
classification of
multiple aliens as
intra-company
transferees may file
a single blanket
petition with DHS.
Qualified
petitioners must use
Form I-129, to file
for approval of a
blanket petition
with the DHS Service
Center having
jurisdiction over
the area where the
petitioner is
located. Form I-129
must also be filed
in advance with the
appropriate DHS
Service Center for
Canadian citizens
who wish to enter
the United States as
L nonimmigrants
under the blanket
petition provision
(also see 41.54
N14.4-2 below). The
DHS Service Center
is required to
notify the
petitioner of the
approval of a
blanket petition
within 30 days after
a completed petition
has been filed.
41.54
N14.2--Requirements
for Petitioners
(TL:VISA-73;
02-05-1993)
a. A
U.S. petitioner,
which meets the
following
requirements, may
file a blanket
petition seeking
continuing approval
of itself and its
specified parent,
branches,
subsidiaries and
affiliates as
qualifying
organizations under
INA 101(a)(15)(L):
(1)
The petitioner and
each of the
specified qualifying
organizations are
engaged in
commercial trade or
services;
(2) The petitioner
has an office in the
United States that
has been doing
business for one
year or more;
(3) The petitioner
has three or more
domestic and foreign
branches,
subsidiaries, or
affiliates; and
(4) The petitioner
and the other
qualifying
organizations:
(a) Have obtained
approval of
petitions for at
least ten ''L''
managers,
executives, or
specialized
knowledge
professionals during
the past 12 months;
or
(b) Have U.S.
subsidiaries or
affiliates with
combined annual
sales of at least $
25 million; or
(c) Have a U.S. work
force of at least
1,000 employees.
b.
The blanket petition
provision is meant
to serve only
relatively large,
established
companies having
multi-layered
structures and
numerous related
business entities.
Such companies
usually have an
established program
for rotating
personnel and, in
general, are the
type of companies
for which the L
classification was
created. The
criteria to qualify
for blanket
petitions are
formulated to
exclude small and
nonprofit
organizations. Such
organizations must
continue to file an
individual petition
for each
beneficiary.
41.54
N14.3--Requirements
for Beneficiaries
(TL:VISA-73;
02-05-1993)
The blanket petition
provision is
available only to
managers,
executives, and
specialized
knowledge
professionals (see
41.54 N8.1-4 and 9
FAM 41.54 N8.2-3
above) who are
destined to work in
an established
office in the United
States (i.e., aliens
seeking to open or
be employed in a
''new'' office (see
41.54 N12 above) do
not qualify). Aliens
who possess
specialized
knowledge, but who
are not specialized
knowledge
professionals, must
obtain L-1 status
through an
individual petition.
An alien may not
apply for a visa
under the blanket
petition procedure
if an individual
petition has been
filed on his or her
behalf.
41.54
N14.4--Documents
Required to Apply
for Visa or
Admission to United
States Under Blanket
Petition
41.54
N14.4-1--Aliens
Requiring Visas
(TL:VISA-464;
09-23-2002)
a.
When a qualifying
organization listed
in an approved
blanket petition
wishes to transfer
an alien abroad who
requires a visa to
another listed
qualifying
organization in the
United States, that
organization must
complete a Form
I-129S, Nomimmigrant
Petition Based on
Blanket L Petition,
in an original and
three copies. The
qualifying
organization shall
retain one copy for
its records and send
the original and two
copies to the alien
beneficiary. A copy
of the Form I-797,
Notice of Action,
notifying the
petitioner of the
approval of the
blanket petition
(which will identify
the organizations
included in the
petition) must be
attached to the
original and each
copy of Form I-129S.
b. After receipt of
Form I-797 and Form
I-129S, a qualified
employee who is
being transferred to
the United States,
may use these
documents to apply
at a consular office
for visa issuance
within six months of
the date on Form
I-129S.
41.54
N14.4-2--Canadian
Citizens Seeking L
Classification Under
Blanket Petitions
(CT:VISA-803;
04-27-2006)
Citizens of Canada
seeking L status
under a blanket
petition shall
present the original
and two copies of
Form I-129S along
with three copies of
the Form I-797, to
an immigration
officer at a Class A
port of entry (POE),
a U.S. airport
handling
international
traffic, or a U.S.
pre-clearance/pre-flight
station. The
availability of this
procedure does not
preclude the advance
filing of Form
I-129S with the DHS
Service Center where
the blanket petition
was approved.
41.54
N14.5--Evaluating
Qualifications of
Blanket L Petition
Beneficiaries
Requiring Visas
(CT:VISA-803;
04-27-2006)
Consular officers
have the authority
and responsibility
for verifying the
qualifications of
individual managers,
executives, and
specialized
knowledge
professionals who
are seeking L
classification under
the blanket petition
provision, and who
are outside the
United States and
require visas. In
addition to
presenting the
required number of
copies of Forms
I-129S and Form
I-797, (see 41.54
N14.4 above), the
alien must establish
that he or she is
either a manager,
executive, or
specialized
knowledge
professional
employed by a
qualifying
organization. The
consular officer
must determine that
the position in the
United States is
with the
organization named
on the approved
petition, that the
job is for a
manager, executive,
or specialized
knowledge
professional, and
that the applicant
has the requisite
employment with the
organization abroad
for six months
within the previous
three years.
41.54 N14.6--Issuing
L Visa under Blanket
Petition Procedure
(CT:VISA-803;
04-27-2006)
Consular officers
may grant L
classification only
in clearly
approvable
applications. If the
visa is issued, the
visa is annotated
''Blanket L-1'' for
the principal alien
and ''Blanket L-2''
for any derivative
spouse or child.
The consular officer
shall also endorse
all copies of the
alien's Form I-129S
Nomimmigrant
Petition Based on
Blanket L Petition,
retain one copy, and
return the original
and other copy to
the applicant. At
the POE, DHS will
stamp the original
and copy of Form
I-129S to show a
validity period not
to exceed three
years and send the
copy to the
appropriate DHS
Regional Service
Center for control
purposes.
41.54 N14.7--Denying
L Visas under
Blanket Petition
Procedure
(CT:VISA-669;
12-23-2004)
If the consular
officer determines
that an alien has
not established his
or her eligibility
for an L visa under
a blanket petition,
his or her decision
shall be final. The
consular officer
shall record the
reasons for the
decision on all
copies of Form
I-129S, retain one
copy, give one copy
to the alien, and
return the original
Form I-129S to the
DHS Regional Service
Center which
approved the blanket
petition. The
petitioner may
continue to seek L
classification for
the alien by filing
a Form I-129S,
individual petition
on his or her behalf
with the DHS Service
Center having
jurisdiction over
the area of intended
employment. The
petition must state
the reason why the
alien was denied an
L visa under the
blanket procedure,
and must specify the
consular office,
which made the
determination and
the date of the
decision.
41.54 N14.8--Filing
Individual L
Petition Instead of
Using Blanket
Petition Procedure
(TL:VISA-73;
02-05-1993)
Although an alien
might qualify to be
a beneficiary of an
L blanket petition,
the petitioner may
file an individual L
petition on behalf
of that alien in
lieu of using the
blanket petition
procedure. When
exercising this
option, the
petitioner must
certify that the
alien will not apply
for a blanket L
visa. The petitioner
and other qualifying
organizations listed
on a blanket
petition may not
seek L
classification for
the same alien under
both procedures,
unless a consular
officer first denies
eligibility under
the blanket petition
provision.
41.54
N14.9--Reassigning L
Blanket Petition
Beneficiary
(TL:VISA-73;
02-05-1993)
An alien admitted
under an approved L
blanket petition may
be reassigned to any
organization listed
in the approved
petition during his
or her authorized
stay, without
referral to DHS, if
the alien will be
performing virtually
the same job duties.
If the alien will be
performing different
duties, the
petitioner must
complete a new
Certificate of
Eligibility Form
I-129S, Nomimmigrant
Petition Based on
Blanket L Petition,
and file it with the
DHS Regional Service
Center, which
approved the blanket
petition.
41.54
N15--VALIDITY OF
APPROVED PETITIONS
41.54 N15.1
Individual Petitions
(CT:VISA-803;
04-27-2006)
a.
Approved individual
L petitions, except
those involving new
offices, are
initially valid for
the period of
established need for
the beneficiary's
services, not to
exceed three years.
If the beneficiary
is coming to the
United States to
open or be employed
in a new office, the
petition may be
approved for a
period not to exceed
one year (also see
41.54 N12.5 above).
b. To extend the
validity of an
individual L
petition, the
petitioner must file
Form I-129, Petition
for a Nonimmigrant
Worker, with the
jurisdictional DHS
Regional Service
Center. Supporting
documentation is not
required except in
petitions involving
new offices, in
which case the
petitioner must
demonstrate that it
is doing business,
as described in
41.54 N10 above, in
order to extend the
petition to
indefinite validity.
A petition extension
may be filed only if
the validity of the
original petition
has not expired.
41.54 N15.2--Blanket
Petitions
(CT:VISA-803;
04-27-2006)
a. An
approved L blanket
petition is valid
initially for a
period of three
years and may be
extended
indefinitely
thereafter if the
qualifying
organizations have
complied with the
regulations
governing the
blanket petition
provision. To
request indefinite
petition validity,
the petitioner must
file a new Form
I-129, Petition for
a Nonimmigrant
Worker, along with a
copy of the previous
approval notice Form
I-797, Notice of
Action, and a report
of admissions during
the preceding three
years. This report
shall include a list
of the aliens
admitted during the
preceding three-year
period, the
positions held, the
employing entity(ies),
and the dates of
initial admission
and final departure
of each alien. The
petitioner must
establish that it
still meets the
criteria for filing
a blanket petition,
and must document
any changes in the
business
relationships listed
on the original
petition and any
additional
qualifying
organizations it
wishes to include.
b. Once the initial
three-year validity
period of a blanket
petition has
expired, if the
petitioner fails to
request an
indefinite validity
blanket petition, or
if the request for
indefinite validity
is denied, the
petitioner and its
other qualifying
organizations must
file individual
petitions on behalf
of its employees
until another three
years have elapsed.
Thereafter, the
petitioner may seek
approval of a new
blanket petition.
41.54 N16--LENGTH
OF STAY
(TL:VISA-73;
02-05-1993)
a. A
beneficiary may
apply for admission
to the United States
only while the
individual or
blanket petition is
valid. The
beneficiary of an
individual L
petition shall be
admitted for the
duration of the
approved petition.
The beneficiary of a
blanket petition may
be admitted for
three years even
though the initial
validity period of
the blanket petition
may expire before
the end of the
three-year period.
If the blanket
petition will expire
before the end of
the three-year
period, the burden
is on the petitioner
to file for
indefinite validity
of the blanket
petition, or to file
an individual
petition on the
alien's behalf to
support the alien's
L status in the
United States.
b. The admission
period for any alien
under INA
101(a)(15)(L) shall
not exceed three
years unless an
extension of stay
(see 41.54 N17
below) is granted.
41.54
N17--EXTENSIONS OF
STAY
(CT:VISA-761;
08-17-2005)
a.
For the beneficiary
of an individual L
petition, the
petitioner shall
request an extension
of the alien's stay
in the United States
on the same Form I-
129, used to file
for the extension of
the alien's
petition. The
effective dates of
the petition
extension and the
beneficiary's
extension of stay
shall be the same.
b. When the alien is
a beneficiary under
a blanket petition,
the petitioner must
file a new Form
I-129S, Nomimmigrant
Petition Based on
Blanket L Petition,
accompanied by a
copy of the previous
Form I-129S, and
must concurrently
request extension of
the blanket petition
to indefinite
validity if such
validity has not
already been
granted.
c. Extensions of
stay may be
authorized in
increments of up to
two years for
beneficiaries of
individual and
blanket petitions.
The beneficiary must
be physically
present in the
United States at the
time the extension
of stay petition is
filed. If the alien
is required to leave
the United States
for business or
personal reasons
while the extension
requests are
pending, the
petitioner may ask
DHS to cable
notification of the
petition extension
to the consular
office abroad where
the alien will apply
for a visa.
When the maximum
allowable period of
stay in L
classification has
been reached (see
41.54 N18 below), no
further extensions
may be granted.
41.54
N18--LIMITATIONS ON
TOTAL PERIODS OF
STAY
(CT:VISA-669;
12-23-2004)
a.
The total period of
stay for L aliens
employed in a
specialized
knowledge capacity
may not exceed five
years. The maximum
allowable period of
stay for an alien
employed in a
managerial or
executive capacity
may not exceed seven
years. No further
extensions may be
granted once these
limits have been
reached.
b. When an alien was
initially admitted
in a specialized
knowledge capacity
and is later
promoted to a
managerial or
executive position,
he or she must have
been employed in the
managerial or
executive position
for at least six
months in order to
be eligible for the
total period of stay
of seven years. The
change to managerial
or executive
capacity must have
been approved by DHS
in an amended, new,
or extended petition
at the time that the
change occurred.
41.54
N19--READMISSION
AFTER MAXIMUM TOTAL
PERIOD OF STAY
REACHED
(TL:VISA-73;
02-05-1993)
a.
When an nonimmigrant
has spent the
maximum allowable
period of stay in
the United States in
L and/or H status,
the alien may not be
issued a visa or be
readmitted to the
United States under
the L or H visa
classification, nor
may a new petition,
extension, or change
of status be
approved for that
alien under INA
101(a)(15)(L) or
(H), unless the
alien has resided
and been physically
present outside the
United States for
the immediate past
year.
b. Brief trips to
the United States
for business or
pleasure do not
interrupt the
one-year period
abroad, but do not
count towards
fulfillment of that
requirement. Periods
when the alien fails
to maint |
