TO THE LAW OFFICE OF JIAN X. KANG
SUMMARY OF LAW ON "L" VISA
L visa is generally governed under the Immigration and Nationality Act (INA) Section 101(a)(15)(L), INA Section 101(a)(44)(A), INA Section 214(c), and 8 C.F.R. Section 214.2(l).
Immigration and Nationality Act Section 101(a)(15)(L) provides, an alien who, within 3 years preceding the time of his application for admission into the United States, has been employed continuously for one year by a firm or corporation or other legal entity or an affiliate or subsidiary thereof and who seeks to enter the United States temporarily in order to continue to render his services to the same employer or a subsidiary or affiliate thereof in a capacity that is managerial, executive, or involves specialized knowledge (L-1), and the alien spouse and minor children of any such alien (L-2) if accompanying him or following to join him.
INA Section 214(c) states that "specialized knowledge" refers to special knowledge of the company's product and its application in international markets or advanced level of knowledge of processes and procedures of the company. This section further provides that an L-1 visa for a manager or executive may not exceed 7 years and an L-1 visa for an alien with specialized knowledge may not exceed 5 years. In addition, an alien spouse of an L-1 visa holder may be authorized engage in employment in the United States if such spouse applies for an employment authorization document.
Both INA Section 101(a)(44)(A) and 8 CFR § 214.2(l)(ii) define "Managerial capacity" to mean 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;
if another employee or other employees are directly supervised, has the authority to hire and fire or recommend those as well as other personnel actions (such as promotion and leave authorization), or, 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.
"Executive capacity" is defined as 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.
Under 8 C.F.R. section 214.2(l), "Intracompany transferee" means an alien who, within three years preceding the time of his or her application for admission into the United States, has been employed abroad continuously for one year by a firm or corporation or other legal entity or parent, branch, affiliate, or subsidiary thereof, and who seeks to enter the United States temporarily in order to render his or her services to a branch of the same employer or a parent, affiliate, or subsidiary thereof in a capacity that is managerial, executive, or involves specialized knowledge. Periods spent in the United States in lawful status for a branch of the same employer or a parent, affiliate, or subsidiary thereof and brief trips to the United States for business or pleasure shall not be interruptive of the one year of continuous employment abroad but such periods shall not be counted towards fulfillment of that requirement.
"Specialized knowledge" means special knowledge possessed by an individual of the petitioning organization's product, service, research, equipment, techniques, management, or other interests and its application in international markets, or an advanced level of knowledge or expertise in the organization's processes and procedures.
"Specialized knowledge professional" means an individual, who has specialized knowledge and is a member of the professions including, but not limited to, architects, engineers, lawyers, physicians, surgeons, and teachers in elementary or secondary schools, colleges, academies, or seminaries as defined under INA Section 101(a)(32).
"Doing business" means the regular, systematic, and continuous provision of goods and/or services by a qualifying organization and does not include the mere presence of an agent or office of the qualifying organization in the United States and abroad.
An L-1 petition filed shall include the following evidence:
Evidence that the petitioner and the organization, which employed or will employ the alien are qualifying organizations as defined in paragraph (l)(1)(ii)(G) of this section.
Evidence that the alien will be employed in an executive, managerial, or specialized knowledge capacity, including a detailed description of the services to be performed.
Evidence that the alien has at least one continuous year of full-time employment abroad with a qualifying organization within the three years preceding the filing of the petition.
Evidence that the alien's prior year of employment abroad was in a position that was managerial, executive, or involved specialized knowledge and that the alien's prior education, training, and employment qualifies him/her to perform the intended services in the United States; however, the work in the United States need not be the same work which the alien performed abroad.
If the petition indicates that the beneficiary is coming to the United States as a manager or executive to open or to be employed in a new office in the United States, the petitioner shall submit evidence that:
Sufficient physical premises to house the new office have been secured;
The beneficiary has been employed for one continuous year in the three year period preceding the filing of the petition in an executive or managerial capacity and that the proposed employment involved executive or managerial authority over the new operation; and
The intended United States operation, within one year of the approval of the petition, will support an executive or managerial position as defined in paragraphs (l)(1)(ii)(B) or (C) of this section, supported by information regarding:
The proposed nature of the office describing the scope of the entity, its organizational structure, and its financial goals;
The size of the United States investment and the financial ability of the foreign entity to remunerate the beneficiary and to commence doing business in the United States; and
The organizational structure of the foreign entity.
If the petition indicates that the beneficiary is coming to the United States in a specialized knowledge capacity to open or to be employed in a new office, the petitioner shall submit evidence that:
Sufficient physical premises to house the new office have been secured;
The business entity in the United States is or will be a qualifying organization as defined in paragraph (l)(1)(ii)(G) of this section; and
The petitioner has the financial ability to remunerate the beneficiary and to commence doing business in the United States.
If the beneficiary is an owner or major stockholder of the company, the petition must be accompanied by evidence that the beneficiary's services are to be used for a temporary period and evidence that the beneficiary will be transferred to an assignment abroad upon the completion of the temporary services in the United States.
As a matter of practice, the Immigration Service often require much more evidence, including the petitioner's payroll record, federal and state tax payment record, business record, etc.
Extension of stay: A petition for extension of stay may be filed by the U.S. petitioner before the expiration of already authorized stay in increments of up to two years for beneficiaries of individual and blanket petitions.
Effect of filing an application for or approval of a permanent labor certification, a preference petition, or filing of an application for adjustment of status on L-1 classification shall not be a basis for denying an L-1, L-2, H-1 or H-4 application by the alien or his/her spouse or children. The alien may legitimately come to the United States for a temporary period as an L-1 nonimmigrant and, at the same time, lawfully seek to become a permanent resident of the United States if he/she departs voluntarily at the end of his or her authorized stay.
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Jian X. Kang
Attorney at law
LAW OFFICES OF JIAN X. KANG
7670 OPPORTUNITY ROAD, SUITE 225, SAN DIEGO, CA 92111