What Are The Criteria For An L-1 Nonimmigrant Visa ?

The L-1 nonimmigrant must have worked outside the United States for the firm or corporation or other legal entity or an affiliate or subsidiary thereof of a U.S. company for a continuous period of at least one (1) year in the past three (3) years. An individual’s stay in the U.S. will not be considered interruptive of the continuous employment abroad requirement, but such period will also not be counted towards the one (1) year period. Also, part-time employment cannot be added up to meet the one (1) year requirement unless the employee has worked part time for each of several foreign affiliates of the U.S. company, and the total employment time equals full-time hours.

The firm or corporation or other legal entity or an affiliate or subsidiary thereof of a U.S. company must be related to the U.S. company in one of the following qualifying manners:

1. The U.S. company and the firm or corporation or other legal entity or an affiliate or subsidiary thereof of a U.S. company are branch offices of the same corporation;
2. The U.S. company owns more than fifty percent (50%) of the firm or corporation or other legal entity or an affiliate or subsidiary thereof of a U.S. company, or the firm or corporation or other legal entity or an affiliate or subsidiary thereof of a U.S. company owns more than fifty percent (50%) of the U.S. company;
3. Both the U.S. company and the firm or corporation or other legal entity or an affiliate or subsidiary thereof of a U.S. company are majority-owned by a third entity; or
4. The U.S. company is part of a joint venture with the firm or corporation or other legal entity or an affiliate or subsidiary thereof of a U.S. company.In the third situation above, if both the U.S. company and the firm or corporation or other legal entity or an affiliate or subsidiary thereof of a U.S. company own less than fifty percent (50%) of the other entity, the employer may still qualify if one company has “effective control” of the other company, or both are “effectively controlled” by a third entity. In the fourth situation above, less than majority ownership, but having control, may be sufficient to qualify the relationship as subsidiary/affiliate.

The prospective L-1 nonimmigrant must currently be working in a managerial or executive capacity, or in a position requiring specialized knowledge. The prospective L-1 nonimmigrant must also be coming to work in one of these capacities with the U.S. company. However, the skills that the foreign national performed in the foreign office do not have to be the same as the ones he will perform in the U.S. office.

Managerial capacity means an assignment with an organization in which the employee primarily:

1. manages the organization, department, subdivision, function or component;
2. supervises and controls the work of other supervisory, professional or managerial employees, or manages an essential function within the organization or department or subdivision of the organization;
3. has authority to hire and fire or recommend personnel actions (if other employees are directly supervised), or if there is no direct supervision, functions at a senior level within the hierarchy or as to the function managed; and
4. exercises discretion over day-to-day operations of the activity or function.

Note that first-line supervisors are not considered to be acting in a managerial capacity merely by virtue of their supervisory duties unless the employees that they manage are professionals.

Executive capacity means an assignment in an organization in which the employee primarily:

1. directs the management of the organization or a major component or function;
2. establishes goals and policies;
3. exercises wide latitude in discretionary decision making; and
4. receives only general supervision or direction from higher level executives, board of directors or stockholders.

Finally, an employee has specialized knowledge when they have special knowledge of the company’s product, service, research, equipment, techniques, management or other interests and its application in international markets, or has an advanced level of knowledge of processes and procedures of the company. Whether an employee has specialized knowledge has been the subject of much debate by USCIS and immigration practitioners. Careful consideration of this requirement is critical.