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Albany Legal Blog

Immigration Opportunities in the Era of COVID

On Behalf of | Aug 26, 2022 | Immigration

I recently came across a great article on how COVID impacted our immigration system and its various processes, and it got me thinking about what some of my own clients were doing.  It also occurred to me that for some of these clients, COVID has had an unintended positive effect on their businesses, and for the purposes of this article, their ability to move certain of their foreign personnel more easily to the United States.  Let me explain.

With the onset of COVID, the world went remote.  Whether you were working from home or, like me, often by myself in our small office in Saratoga Springs, New York, the business world learned how to use Zoom, Microsoft Teams, and all the other video platforms out there.  Technology had already made the world a smaller place, but COVID took it to a different level.

Many of my clients were working with foreign nationals who were outside the U.S., either as contractors or employees and for some of them, enough of them were in the same country (e.g., Canada and India, among others) where it made sense to actually set up an entity and business office in that country from which these foreign nationals would work.

With that, an interesting visa opportunity arises (that does not involve the almighty H-1B specialty occupation visa).  Enter the L-1 intracompany visa for multinational executives, managers, and individuals with specialized knowledge.

A foreign national (intracompany transferee) who within the preceding three (3) years has been employed abroad for one (1) continuous year by a qualifying organization may be admitted temporarily to the United States to be employed by a parent, branch, affiliate, or subsidiary of that employer in a managerial or executive capacity (the L-1A visa), or in a position requiring specialized knowledge (the L-1B visa).  The L-1 visa may also be issued to a qualifying organization abroad that is opening a “new office” in the United States.

So, what are the requirements? There are several (and this article speaks of them at only a very high level).

First, the employee must have worked abroad for the overseas company for a continuous period of at least one year in the past three years.  (An employee’s stay in the U.S. is not interruptive of the continuous employment abroad, but such period will not be counted towards the one-year period.)  Part-time employment cannot be added up to meet the one-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.

Second, the overseas company must be related to the U.S. company in one of the following qualifying manners: (a) the U.S. company and the company abroad are branch offices of the same corporation;  (b) the U.S. company owns more than 50% of the overseas company, or the overseas company owns more than 50% of the U.S. company; (c) both the U.S. and overseas company are majority-owned by a third entity; or (d) the U.S. company is part of a joint venture with the overseas company.

If both the U.S. company and the company abroad own less than 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.

Third, the employee must currently be working in a managerial or executive capacity, or in a position requiring specialized knowledge.  The employee must also work in one of these capacities with the U.S. company.  Notably, the skills the foreign national performed in the foreign office do not have to be the same as the ones he or she will perform in the U.S. office.  What does all this mean?

  • 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. The employee also supervises and controls the work of other supervisory, professional, or managerial employees.

    The employee may also manage an essential function within the organization or a department or subdivision of the organization. If the employee has direct supervision over other personnel, the employee should have the authority to hire and fire personnel or recommend such actions.  The managerial employee also may authorize other personnel actions, such as promotions and leave. If the managerial employee does not directly supervise any other employee, he or she may function at a senior level within the organizational hierarchy with respect to the management of the company.

    Finally, the managerial employee exercises discretion over the day-to-day operation for which he or she has authority.  (Note that a first-line supervisor is not considered to be acting in a managerial capacity merely by virtue of supervisory duties unless the employees he or she manages are themselves, professionals.)

  • 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. Executives establish the goals and policies of the organization, component, or function.  In addition, executives exercise wide latitude in discretionary decision-making.  Finally, an executive should only receive general supervision or direction from higher-level executives, the board of directors, or stockholders of the organization.
  • Finally, Specialized Knowledge means special knowledge possessed by an individual of the petitioning organization’s product, service, research, equipment, techniques, management, or other interests and their application in international markets, or an advanced level of knowledge or expertise in the organization’s process and procedures.

As I mentioned earlier, there is also the possibility that the foreign company can set up what is called a “new office” in the U.S.  (We often see investor or entrepreneurs with foreign entities using this category to start up a company in the U.S.)  The petitioner would need to submit evidence that sufficient physical premises to house the new office have been secured.  (USCIS does not like to see work-at-home arrangements, although I’ve successfully done them before.)  This generally requires a lease for office space at a minimum.  Proof also needs to be submitted that the “new office” will support an executive or managerial position within one year of the approval of the petition.  Specialized knowledge personnel can also utilize this “new office” provision.

The L-1 is an incredibly versatile nonimmigrant visa category and, importantly, L-1 managers and executives are also eligible for permanent residency (i.e., a Green Card); that is, the first employment-based immigrant preference category (EB-1) is reserved for “priority workers,” including L-1 level managers and executives.  There are 40,000 allotted annually, and this category is rarely if ever backlogged.  (L-1 managers and executives qualifying for EB-1 are exempted from the labor certification requirement, which is an incredibly burdensome procedure.)

For overseas employees of U.S. employers reading this, you may not realize that your current employer could provide you with opportunities to legally enter the United States, either temporarily or permanently.  The L-1 visa also allows you to bring you qualifying family members to the United States too (i.e., spouses and unmarried children under the age of 21).

We always talk about the H-1B visa, which some would argue is more difficult to get than a ticket to the Superbowl.  Sometimes you just need to think outside the box.  COVID has created new immigration opportunities for many employers, investors and entrepreneurs, including the L-1 intracompany transferee visa for multinational executives, managers, and individuals with specialized knowledge.