An L-1 visa can be issued to a foreign national employee who has worked abroad for at least one continuous year within the last three years for a qualifying, related business entity (e.g., parent, subsidiary, affiliate) in an executive, managerial or specialized knowledge capacity, and who is being transferred to the U.S. to work for the same Employer or a parent, subsidiary or affiliate of the Employer. The Employer must be doing business in the U.S. and at least one other country for the duration of the employee’s stay in the U.S. as an L-1 nonimmigrant.

For Canadian citizens, the L-1 petition may be filed directly with a Class A port of entry located on the U.S.-Canada land border or at a United States pre-clearance/pre-flight station in Canada. U.S. Customs and Border Patrol designated various ports of entry for optimized processing (see https://www.cbp.gov/travel/canadian-and-mexican-citizens/traveling-tn-or-l1-visa-canada). These designated ports of entry, including pre-flight inspection at an airport, aim to ensure more efficient processing for Canadians who are applying for their first L-1 under the United States–Mexico–Canada Agreement (USMCA). First-time L-1 applicants may continue to go to any port of entry. However, while they are not required to go to one of the designated ports of entry, they are encouraged to do so in order to receive optimized processing. Additionally, it would be best to apply during normal business hours, and to avoid peak times if possible (for example, a Monday morning). It is also important to note that petitions may not be submitted ahead of time. Petitions submitted to a port of entry may only be adjudicated when the applicant is seeking entry into the United States. As such, applicants applying at a pre-flight inspection are strongly advised that they must allow for sufficient time for processing prior to the departure of their flight.

For citizens of other countries, an L-1 visa petition must be filed with and approved by USCIS prior to the employee applying for the L-1 visa at the U.S. Consulate or Embassy. The petition must include documentation evidencing that the relationship between the U.S. company and the foreign company from which the employee is being transferred meets one of the above listed qualifying relationships. The L-1 petition must also include a description of the managerial, executive or specialized knowledge position that the employee will assume in the U.S., and a summary of the employee’s qualifications for that position. If the employee is already in the U.S. in another valid nonimmigrant status, a change of status can be requested as long as the employee met the requirements for such classification prior to his/her entrance into the U.S. and is maintaining valid nonimmigrant classification at the time of filing the request for change of status. Family members who derive their nonimmigrant status from that of an L-1 nonimmigrant will be classified as L-2 nonimmigrants. L-2 spouses (not children) are allowed to apply for work authorization after they arrive in the U.S., and all L-2 nonimmigrants are allowed to attend school while in the U.S.

Managers and executives may be admitted for up to seven years. Specialized knowledge employees may be admitted for up to five years and, if promoted to a managerial or executive position after admission (and if USCIS is properly notified of the promotion), may remain for up to seven years. Time in H-1B status is counted towards the total seven or five year limit. The following definitions apply:
Managers

The definition of “manager” includes those who manage a “function” or “component” of an organization, and not only personnel. Managerial capacity has been redefined by USCIS to mean 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 hiring, firing, or other personnel actions; or, if no employees are 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 the supervisory duties unless the employees supervised are “professional.”

Executives

The definition of “executive” applies to those assignments where the employee:

1. directs the management of the organization or a major component or function;
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 shareholders of the organization.

Specialized knowledge

The “specialized knowledge” category means special knowledge possessed by an individual of the organization’s products, services, research, equipment, techniques, management or other interests and their applications in international markets, or an advanced level of knowledge or expertise in the organization’s processes and procedures.

With certain exceptions, L-1B specialized knowledge visas will not be issued to individuals working at a third-party employer site other than the petitioning employer’s worksite. Off-site placement to provide labor to a third-party employer is not permitted. This provision will apply to initial applications as well as to extensions or amendments as of June 6, 2005.

The inclusion of “functional” managers and executives within the definition of L-1 managers/executives makes it possible for many more L-1 beneficiaries to immigrate, as employment-based first preference (EB1) managers and executives are exempt from the labor certification process. So-called “specialized knowledge” L-1 employees cannot qualify for this particular employment-based immigrant category.
Filing fees

In addition to the filing fee for the L-1 petition, there is a $500 anti-fraud fee to be paid by the employer at the time of initial application for all L-1 visas. In the case of blanket L-1s, the fee will be paid at the U.S. Embassy/Consulate. Extensions of L-1 status for the same employer are not subject to this fee. If premium processing is sought, the standard premium processing fee will also apply.
This information is intended for clients of Jackson & Hertogs only. This is not intended to provide legal advice to non-clients of this firm. Nor will we respond to inquiries from non-clients. You should seek your own legal counsel in these matters.