Eligibility Requirements For The L-1 Visa

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If your business is looking to open a new branch in the United States or transfer an upper-level manager or executive to an already existing branch, the L-1 intracompany transferee visa may be the visa for you, however, do not rule out the E2 if you qualify as you may still be able to obtain a Green Card if you have a foreign company.

The L-1 visa is one of our favorite visas, however, it has become the most difficult to obtain in 2021 and COVID did not help.   Not only does it require a smaller investment than the EB-5, but it also allows you to apply for a Green Card after only one year of serving as an international executive or manager in the US. It has many benefits and is worth exploring.

Certain requirements must be met in order to be eligible to apply for an L-1 intracompany transferee visa. Let’s go through the requirements one by one:

1. The Foreign entity and the U.S. entity must have a qualifying relationship and both entities must be currently conducting business.

Qualifying organizations include a parent company, branch, subsidiary, or affiliate.

The definition of qualifying organizations is further defined as:

Parent: 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.

Branch: An office or operating division of the same employer which is merely housed in a different location and is not established as a separate business entity is considered a branch.

Subsidiaries: There are only three situations that constitute a subsidiary relationship for L1 purposes:

1. Where a parent directly or indirectly owns more than half of the entity and has control;
2. Where a parent directly or indirectly owns 50% of a 50-50 joint venture and has equal control and veto power. The 50-50 joint venture can be owned and controlled by only two legal entities. All other combinations of a joint venture are not qualifying as a subsidiary;
3. Where a parent directly or indirectly owns less than half of the entity but has control because the other stock is widely dispersed among minor shareholders. This can happen, for example, when an individual or company acquires sufficient shares of a publically-held company to be able to nominate and elect the board of directors.

Affiliate: Subsidiaries are affiliates of each other. The affiliate relationship is established by:

• 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, or
• 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 United States partnership if it markets its accounting services under the same internationally recognized name under the agreement with the worldwide coordinating organization of which the United States partnership is also a member.

While the organizations must be related through ownership and/or control, they are not required to be the same type of company. For example, you could open a software consulting firm in Los Angeles and own a pub in London. As long as you possess ownership of both companies and satisfy the other requirements, you would be eligible for an L-1 intracompany transferee visa.

Another important note: both the foreign entity and the US entity must continue to do business throughout the duration of L1 status in the US. Doing business means the regular, systematic, and continuous provision of goods and/or services and does not include the mere presence of an agent or office.

2. You must have been employed in the foreign company as a manager or executive for at least one full year out of the previous three years.
Before moving to the United States, you must have been working in a foreign country for the company for at least one continuous year out of the previous three years prior to submitting the L-1 intracompany transferee visa. While it is best to have worked full-time, you don’t need to have been working full time, but on a regular basis for more than part-time. If you’ve been working part-time for several affiliated companies, you may be able to combine the part-time work to meet the one-year requirement.

We understand this requirement is not possible for everyone to meet. If not, an E-2 treaty investor visa may be the better choice of visa for you. Feel free to give us a call at (877) 233-4684 if you have any questions.

3. You must be working as an executive or manager for the company.
You must have been an executive or high-level manager of the company abroad and be entering to serve as an executive or manager for the US company. As an alternative, you may have been a worker with specialized knowledge (L1B Visa). You do not have to be transferred into the exact same position you held while abroad, but you must continue to work in a managerial, executive, or specialized knowledge position. USCIS is very strict with regard to the definition of executive or manager.

Establishment of executive capacity as defined at 8 C.F.R. § 214.2(l)(1)(ii)(C):

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.

An executive refers to someone who oversees the managerial positions in a company, often the brains or direction of the enterprise.
A Manager as defined at 8 C.F.R. § 214.2(l)(ii)(B):

• 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.

A high-level manager refers to someone who manages an entire department or firm, supervising other professionals, supervisors, or managers in the company. This person should have the power to hire and fire personnel.

For a functional manager, the function must be a clearly defined activity, be critical or essential (meaning necessary, core, or a fundamental activity) to the foreign company and the manager must primarily manage the function rather than performing day to day duties of the function. Then the qualifications of manager must be met.

There are two types of specialized knowledge applicable: 1. an employee who has a complex understanding of the way the company operates, or 2. an employee who has specialized knowledge about the company’s product/service(s), research/equipment, or methods and how they work in international markets.

Important Note: A manager or executive of a company will be able to remain in the United States up to 7 years. A person with specialized knowledge will be limited to a total of 5 years and also be unable to obtain an EB1 or EP1 Green Card.

4. A sufficient amount of physical space must be secured for the office or location in the U.S.
A home office generally does not count as an office space under the conditions of the L-1 intracompany transferee visa. The new or existing branch, subsidiary, or affiliate office must have secured sufficient physical premises to house the new office and the intended US office will support an executive or managerial position within one year.

5. If you are opening a new office, it must be actively operating and supporting an executive or manager position within 1 year of the L-1 visa request.
If you are an executive or upper-level manager opening a new branch, subsidiary, or affiliate office within the United States, you have one year in order to get your new business up and running. After one year, the L-1 intracompany transferee visa may be renewed if you can prove that your office is active and operating and requires the services of an executive or manager. This may include hiring additional employees, producing a strong stream of revenue, or fulfilling contract orders.

A few other additional requirements for L-1 intracompany transferee visa eligibility:

• You must intend to depart from the United States once your L-1 intracompany transferee visa expires. (However, you do have the option to apply for a Green Card to stay in the country once you’ve held the L-1 visa for at least one year.)
• You, the employee, must be qualified for your company position through past education or business experience.

If you have any questions about the application process for the L-1 intracompany transferee visa, feel free to give us a call at (877) 223-4684. You may also learn more about the visa by watching one of our many videos as well as the other pages we have on this site.

Have more questions, or ready to get started? Give us a call today for a free consultation!

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