Understanding the L Visa
The L-1 visa allows a multi-national company to transfer an executive, manager or specialized knowledge employee from an office abroad to an affiliated office in the United States. To qualify, the employee had to have worked for a subsidiary, branch or affiliate abroad in an executive, managerial or specialized knowledge capacity for at least one out of the last three years. The employee must also be coming to an affiliated US office to work in an executive, managerial or specialized knowledge capacity.
“New Office” L Petitions
While new start-up offices in the US are eligible for the L-1 visa, there are more stringent requirements for “new office” L-1 petitions than the normal requirements that apply to already established companies. In addition to the normal L visa requirements, a “new office” must establish that the employer has secured enough physical premises to house the new office and that the new office will support an executive or managerial position within one year of approval of the petition.”
Requirements for the L-1A Executive / Manager Visa
The L-1A visa allows a multi-national company to transfer an executive, manager or specialized knowledge worker from an office abroad to an affiliated office in the United States, where the worker will be employed in an executive or managerial role. To qualify, the employee had to have worked for a subsidiary, branch or affiliate in an executive, managerial or specialized knowledge capacity for at least one out of the last three years. The L-1A visa for an executive requires that the employee be coming to work in in a capacity that requires the employee to make decision of great latitude without much oversight. For a manager L-1A, the employee must be coming to work in a supervisorial role in which he or she will control other workers and/or an essential function of the company.
Requirements for the L-1B Specialized Knowledge Visa
The L-1B visa allows a multi-national company to transfer an executive, manager or specialized knowledge worker from an office abroad to an affiliated office in the United States, where the worker will be employed in a specialized knowledge role. To qualify, the employee must possess and be coming to the US to use “special knowledge” of the 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. Additional requirements must be met if the specialized knowledge employee is working at an unaffiliated worksite.
How Long are L visas Valid?
“New Office” L petitions are granted for an initial 1year period, whereas L visa petitions filed by companies with a more established US office can be initially approved for up to three years. L visa extensions are usually granted for 2 years up until the maximum time allowed under each visa category. L-1A visas can be extended up to 7 years, while L-1B visas can be extended only up to 5 years. Also, an L-1B visa holder can potentially change to L-1A visa so long as the L-1A peititon is approved at least 6 months before the end of the 5th year in L-1B status.
Spouses and Children of L Visa Holders
Spouses and unmarried children under 21 may accompany the L visa holder to the US and can be given L-2 visas for dependents. Spouses of L visa holders may be eligible to apply for an employment-authorization document.
What are the Changes under the Consolidated L-1B Policy Memorandum Regarding “Specialized Knowledge”?
In a November 20, 2014 memorandum, USCIS acknowledged that the L-1B visa is “an essential tool for managing a global workforce as companies choose where to establish new or expanded operations, research centers, or product lines, all of which stand to benefit the U.S. economy.” USCIS further acknowledged that the inconsistency in adjudication has created uncertainty for companies that are trying to create jobs and expand operations in the US. DHS Secretary Jeh Johnson instructed USCIS to issue a policy memorandum “that provides clear, consolidated guidance on the meaning of ‘specialized knowledge.'” On March 24, 2015, Mr. Johnson issued an interim memorandum outlining the ways USCIS will improve consistency in L-1B adjudications. The new changes are intended to streamline the “specialized knowledge” criteria and also to provide companies more flexibility for bringing their foreign workers to the US. USCIS published the final version of the L-1B policy on August 17, 2015. The memo provides a non-exhaustive list of factors USCIS may consider in the specialized knowledge analysis and consolidates previous guidance on the L-1B visa category.
The memo provides some clarification on “specialized” or “advanced knowledge”:
- “Specialized knowledge” is knowledge that is “distinct or uncommon” in comparison to that normally found in the specific industry. Knowledge that is commonly held, lacking in complexity, or easily imparted to other individuals will not be considered “specialized.”
- “Advanced knowledge” is knowledge that is “greatly developed or further along in progress, complexity and understanding” than generally found within the employer.
For both “specialized” or “advanced” knowledge, there must be a comparison of the beneficiary’s knowledge against that of other workers.
For workers with specialized knowledge who are working off-site, the memo requires the petitioning employer to demonstrate that it retains the right to control the employee and that, while off-site, the employee will be using the specialized knowledge that serves as the basis of the L-1B petition. The memo notably provides deference to L-1B extension petitions initially approved by USCIS unless substantial changes have been made or a material error in the initial approval is discovered.
Connecting Your Business With International Talent
At Becker & Lee LLP, employment-based immigration is one of our primary practice areas. Our experienced attorneys have worked with a range of talented individuals, employers and human resource professionals to obtain L visas, and other temporary work visas for their employees. Past clients include computer software companies, Silicon Valley tech companies, and a range of additional startups and businesses.
Our L visa lawyers offer comprehensive representation to help ensure legal compliance and efficiency and increase chances of success in the visa application process. Contact our San Francisco law firm to learn more about your options.