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 he diffusion of geographic boundaries by business and industry has transformed executive and managerial roles within an organisation. As offices of behemoth corporates dot the global landscape, organisations increasingly feel the necessity of sending ace managers, executives and employees with specialised knowledge on temporary assignments abroad. Recognising the needs of global organisations, the Immigration and Naturalisation Services instituted the L-1 visa, also called the intra-company transferee visa, which permits non-US based companies to transfer executives, managers, and employees with specialised skills to a US office, subsidiary or affiliated company to perform temporary services. The INS considers an individual from each of these three categories eligible, provided he has
worked for one continuous year within the preceding three years in an executive, managerial, or specialised knowledge capacity and is being temporarily transferred in a similar capacity for a qualifying, related business entity.
Definitions of Managers, Executives, Specialised Knowledge: The INS has evolved its own parameters to define managers, executives and persons with specialised knowledge.
The INS defines managerial capacity as an assignment within an organisation in which the employee primarily:
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Manages the organisation, or a department, subdivision, function, or component of the
organisation.
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Supervises and controls the work of other supervisory, professional, or managerial employees, or manages an essential function within the organisation, or a department or a subdivision of the
organisation.
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If the manager is directly supervising another employee or employeer, he must have the authority to hire, fire, promote and to authorise leave. If no other employee is directly supervised, the manager must function at a senior level within the organisational hierarchy or with respect to the function managed and
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Exercises discretion over 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 supervisory duties unless the employees supervised are professional.
The INS defines executive as a person who performs the following functions in the organisation
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Directs the management of the organisation or a major component or function of the organization.
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Establishes the goals and policies of the organisation, component, or function.
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Exercises wide latitude in discretionary decision-making; and
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Receives only general supervision or direction from higher level executives, the board of directors, or stockholders of the
organisation.
The definitions clearly signify that a majority of duties must relate to operational or policy management and not to the supervision of lower level employees, or other operational activities such as doing sales work or operating machines or supervising employees who do so. This does not mean that the executive or manager cannot regularly apply his or her technical or professional expertise to a particular problem. It only means that these should not form the crux of the job profile. The INS’ definitions of managerial and executives roles excludes supervisors who plan, schedule, and supervise the day-to-day work of nonprofessional employees even though they may be referred to as managers in their particular organisation. In addition, individuals who primarily perform tasks necessary to produce product(s) or provide service(s) to an organisation are not employed in an executive or managerial capacity.
Professionals possessing specialised knowledge are defined as individuals whose work requires specific training and education received through a university’s bachelor’s degree program. The professional should possess specialised knowledge, which in INS’s terms means knowledge of the petitioning organisation'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 organisation's processes and procedures. All skilled professionals with specialised knowledge applying for an L-1 intra-company transfer visa should have been engaged in a similar job abroad. Companies applying for L-1 visas in this category must exercise care in profiling the individual’s job. This job description helps the INS to decide if these specialised functions - knowledge of product, process, research, and technique - can be performed by a US citizen. If not, can the specialised knowledge worker help to contribute to the international marketing of this knowledge and the application thereof?
Companies and organisations must be careful when applying for the L-1 visa, since the initial categorisation can impact negatively on the employee’s future status and jeopardise the employee’s decision to receive permanent resident status. The company must analyse each category before making a selection, as the initial classification will determine whether an alien can later receive permanent residence status, which can lead to US citizenship.
Definition of Parent, Subsidiary, Branch, Affiliate: As stated earlier, the L-1 intra-company transferee visa allows a parent company located outside the US to transfer executives, managers, and employees with specialised skills to a US office, subsidiary, or affiliated company to perform temporary services for the purpose of the L-1 visa.
A parent means a firm, corporation, or other legal entity which has subsidiaries.
A branch means an operating division or office of the same organisation housed in a different location.
A subsidiary means a firm, corporation, or other legal entity of which a parent owns, directly or indirectly, 50 per cent of a 50-50 joint venture and has equal control and veto power over the entity; or owns, directly or indirectly less than half of the entity, but in fact controls the entity. The mere likeness of controlling interest is not generally approved by the INS service officials.
An affiliate means one of two subsidiaries both of which are owned and controlled by the same parent or individual, or 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.
Joint Venture: A joint venture exists when there is no common ownership between the two companies, but they have jointly undertaken a common business operation or project. To qualify for L-1 visa, each company must have veto power over decisions, must take an equal share of the profits and bear the losses on an equal basis. In a situation where both the US and non-US companies are in the corporate or limited form and the majority of the stock of both is publicly held, unless they are simply branches of the same company that wish to transfer employees between them, the joint venture relationship is the only one that is practical for L- I qualifying purposes. The ownership of a publicly held company is too vast and diverse to prove any of the other types of qualifying business relationships.
How to apply: The L-1 visa requires the employer to file a petition with the Immigration and Nationalisation Service. Once the petition is approved, the applicant can file the L-1 visa application. The petition for L-1 status must be filed with the appropriate regional office of the Immigration and Naturalisation Services with jurisdiction over the place where employment will be conducted. The Service Center will determine whether the employee is eligible for the L-1 visa. The Center may take approximately 30 days to process and review the application.
Petitioning Documents: In order to satisfy INS’ requirements about the nature of the employee’s position, the company needs to provide specific information about titles, job duties and educational levels of the employees supervised. General statements concerning the fact that the employee is a manager or managed other mangers will be insufficient. The company needs to file sufficient documents to prove its claims. A detailed documentation list is given below:
Petition Requirements
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Full name and address of petitioning company.
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US employer’s Tax ID number.
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Name and title of person signing forms and company letter.
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Years US and foreign companies were established.
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Current number of employees of US and foreign companies.
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Gross net income of US and foreign companies and most recent fiscal year.
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If the company has a Web page, its address.
US and Foreign Company Documents: The type and number of documents required depends on how established the US and foreign companies are and on their income and employment statistics. Generally, the bigger and more well known the company, the fewer the documents required to prove existing operations in the US and abroad and financial status. For example, a large multinational corporation may meet the documentation required by a submission of an annual report and a few other documents which sets forth the relationship between the company and the affiliate, whereas a smaller company may have to satisfy the INS on a number of counts.
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Annual Report.
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Financial statements, balance sheets and tax returns.
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Articles of Incorporation.
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Original piece of the company’s promotional materials.
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Certificate to do business in State.
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Business license.
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Lease agreements for business premises.
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Photographs of company offices.
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Bills of lading or letters of credit.
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An official document listing the employees abroad or stating the number of employees eg tax record or employee insurance documents.
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Bank statements.
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Corporate minutes from company abroad indicating that specific employees are being transferred to the US company.
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Copies of contract between company in the US or company abroad and other entities.
Information Documents Regarding Beneficiary's Employment, Education
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Exact date (month and year) employee began employment with the company abroad and a listing of all positions held by month year. Please explain if there have been any interruptions in employment with company abroad.
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Full address of a company office whose beneficiary currently works.
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Organisational chart for company abroad showing the position held at a minimum for the last year which lists the titles and names of the persons supervised in managerial executive cases only.
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Organisational chart for the proposed US managerial or executive position also showing the titles and names of the persons who will be managed.
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Detailed job description of the duties performed abroad in position held during the last three years.
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Detailed job description of the proposed US job duties.
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Current version of the prospective employee’s resume.
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Diploma or degree certificate and transcript particularly related to the position available if any.
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Copies of any letters of recommendation or congratulations or promotion received from the current foreign employer.
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Salary and description of the US position to which the transfer is sought.
New Branch or Office
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If the alien is coming to the US to open a new office, also file the petition with copies of evidence the business entity in the US.
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Already have premises to house the new office.
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Has, or upon establishment will have, the qualifying relationship to the foreign employer.
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Has the financial ability to remunerate the alien and to begin doing business in the US, including evidence about the size of the US investment, the organisational structure of both firms and the financial size and condition of the foreign employer.
If the alien is coming as an L-1 manager or executive to open a new office, such evidence must establish that the intended US operation will support the executive or managerial position within one year.
Personal Information About Employee
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Full legal name of the employee.
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Date and place of birth of the employee.
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Current foreign address of the employee (The petition form requires this petition).
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Copy of employee’s current passport.
Blanket L Petition: An L blanket petition simplifies the process of later filing for individual L-1A workers and L-1B workers who are specialised knowledge professionals. A blanket L petition can be filed by a US employer, who will be the single representative between INS and the qualifying organisations. The petition must be filed with copies of evidence that:
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The company and its branches, subsidiaries and affiliates are engaged in commercial trade or services.
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The company has an office in the US that has been doing business for one year or more.
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The company has three or more domestic and foreign branches, subsidiaries, or affiliates.
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The company and the qualifying organizations have obtained approved petitions for at least 10 "L" managers, executives or specialised knowledge professionals during the previous 12 months.
The company has US subsidiaries or affiliates with combined annual sales of at least $25 million, or have a US work force of at least 1,000 employees.
After approval of a blanket petition, the company may file for individual employees to enter as an L-1A alien or L-1B specialised knowledge professional under the blanket petition. The petition must be filed with:
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A copy of the approval notice for the blanket petition.
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A letter from the alien's foreign qualifying employer detailing his/her dates of employment, job duties, qualifications, and salary for the three previous years; and
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If the alien is a specialised knowledge professional, a copy the degree equivalent to a US, degree.
Documents For Stamping: The petition is officially approved when the INS sends Form I-797, which notifies the employee that the employee has been approved to work in the US. Once the INS forwards I-797 to the employer, the employee can apply for a visa at the nearest US Consulate on State Department Form O-156. (Click here to Download Form) Employees of companies who subscribe to the Blanket L-1 visa can go directly to the Consulate for stamping. Apart from the INS approval and other documents, the applicant must submit the following:
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Completed application form
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Passport valid for travel to the United States and with a validity date at least six months beyond the applicant's intended period of stay in the United States.
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One colored photograph 1 and 1/2 inches square (37 x 37mm) for each applicant, showing a full face, without head covering, against a light background. a notice of approval, Form I-797. The application fee is Rs 2,115 per person. Demand draft or cash for visa issuance is Rs 3,525 per person. All fees must be paid by demand draft only, payable to the American Consulate General, in
Chennai.
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Consular fees will be accepted by way of demand drafts issued by nationalised and foreign banks only. The demand drafts should be in favour of American Consulate General, payable at
Chennai.
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Demand drafts from cooperative banks will no longer be accepted for consular fees. Separate demand drafts are necessary for the application and issuance fees. Your name and passport number must be included on the reverse of the demand draft. Demand drafts without this information will not be accepted.
(Click here for more details)
Drop Box: Applicants can use the TT Services facility to submit the forms to the Consulate. The service fee for Chennai, Bangalore and Hyderabad is as follows:
Chennai - Rs.150 favouring TT Services, payable at Chennai by Cash or DD
Bangalore - Rs 250 favouring TT Services, payable at Bangalore only by DD
Hyderabad - Rs.250 favouring TT Services, payable at Hyderabad by Cash or DD
Length Of Stay: Typically, the approved L-1 is granted for a period of three years. Thereafter, extensions are usually given in two-year increments. The total period of stay permitted for managers and executives is seven years. For specialised workers, the duration is five years. Once the maximum duration has been reached, the alien must reside abroad for at least one year, then he or she may return to the US on the L-1. It is important to note that the times spent in L-1 status and H-1B status are added together and counted toward the total. Thus, if a specialised worker had spent two years in H status and then spent three years in L status, he will not be able to obtain an extension.
Visa Extension: When the L-1 status of the manager, executive or employee with specialised knowledge expires, and there is a need to renew their classification, they must either return to their native country or any other country for at least one year before the INS will reconsider the renewal of L-1 visa status. There are provisions which could allow for the alien to be in the United States while waiting for reentry as an L-1 Visa recipient. If the purpose is for pleasure, recreation or travel, the alien can be granted a tourist visa. In addition, the Immigration Service will neither protest nor ask the alien to leave the country if the purpose of the visit is to keep business appointments within a limited period of time. These brief visits do not deny the alien the right to reapply for L-1 after a one-year period; however, these periods cannot be considered as part of the one year waiting period.
Advantages of L-1 visa: The L-1 visa offers many advantages over the H-1B for the employer and the employee. There is no upper limit to the number of L-1 visa, which the INS can issue. Hence, if the employees fulfills the eligibility criteria and the company does not goof up the documentation, the L-1 visa is guaranteed to the employee. Moreover, it is not incumbent on L-I visa holders to prove that they have no intentions to immigrate to the US and the Consulate guarantees the visa Green card applications filed by L-1 holders are given preference over H-IB applicants.
L-2 Visas: The spouse and children of L-1 visa holders are entitled to the same nonimmigrant classification and the same length of stay as the employee. The foreign national spouse and children are admitted with L-2 visas. Like the H-4 visa, L-2 holders can stay in the US but not work there.
Useful Link
Download electronic version of OF-156
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