This article discusses the brief history and basic requirements for L-1A visa. The need for L-1 visa arose from the advent of globalization which facilitated exponential growth in trade, movement of capital, people, and knowledge around the globe. Many business organizations, including US corporations seized the opportunity to expand globally and establish operations around the world. The multinational nature of these corporations required free movement of their top-level personnel. But these corporations faced difficulty in bringing their foreign national executive and manager into the United States. To address this issue, US Congress in 1970 established a temporary L visa category for aliens (i.e. foreign nationals) who performed in managerial/executive capacity or who had specialized knowledge.
A multinational firm or corporation that wants to transfer their executive or manager into the United States must file an I-129 petition with the United States Citizenship and Immigration Services (USCIS). It may also file a blanket petition under certain circumstances. The USCIS will generally approve the petition if it can be demonstrated that the foreign national executive or manager has been employed by the multinational firm or corporation for at least one continuous year in the preceding three years in an executive or managerial capacity.
What is an Executive Capacity?
Executive capacity means an assignment within an organization in which the employee primarily:
Directs the management of the organization or a major component or function of the organization;
Establishes the goals and policies of the organization, component, or function;
Exercises wide latitude in discretionary decision-making; and
Receives only general supervision or direction from higher level executives, the board of directors, or stockholders of the organization.
What is a Managerial Capacity?
Managerial capacity means an assignment within an organization in which the employee primarily:
Manages the organization, or a department, subdivision, function, or component of the organization;
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;
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
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 the supervisor’s supervisory duties unless the employees supervised are professional.
Major Adjudication Issues
Qualifying Relationship Between the U.S. Employer and the Organization Abroad
The USCIS will first examine whether there is a qualifying relationship between the multinational organizations, that is, whether the employer in the US is related to the organization abroad. To establish a “qualifying relationship” the petitioner must show that the beneficiary’s foreign employer and the proposed U.S. employer are the same employer (i.e., a U.S. entity with a foreign office) or related as a “parent and subsidiary” or as “affiliates.” To do so USCIS examines the ownership and control which can be established by providing annual report filed with SEC if it is a large corporation or through financial documents which may include tax records and corporate filings.
Next, the USCIS will examine whether the US business entity is doing active business or is just a maintaining a mere presence. A foreign national who is a multinational executive or manager may enter the US to open a new office. In case of a new office, the US employer must at least show that the business entity has been formed and a business premises has been obtained to start the business operations. In case of an established business, the US employer must document the regular, systematic and continuous provision of goods and services. Doing business does not mean just having a mere presence of an agent or office of the qualifying organization in the US.
These are just few considerations…please contact our firm for additional details.