The L-1 Visa: A Potential Solution for Multinational Managers, Executives, and Employees with Specialized Knowledge 

The L-1 intracompany transferee visa allows a foreign company to transfer a manager, executive, or employee with specialized knowledge to work for a parent, subsidiary, affiliate or branch in the United States. The L-1 petitioning company has the burden of proving that (1) the two companies are qualifying organizations (i.e. that the requisite parent, subsidiary, affiliate or branch relationship exists); (2) the foreign national will be employed in an executive, managerial, or specialized knowledge capacity; (3) the foreign national has at least one continuous year of full-time employment abroad with a qualifying organization within the required three year period before filing the L-1 petition; and (4) the foreign national's prior year of employment abroad was in a position that was managerial, executive, or involved specialized knowledge.

Here are some important aspects of each of the requirements listed above:

(1)    The two companies are qualifying organizations - Much litigation has ensued as to what constitutes a qualifying relationship between the foreign entity and the U.S. entity for purposes of the L-1 visa. The law requires that the petitioning company be a parent, subsidiary, affiliate, or branch of the same employer for whom the alien has been employed abroad. A high percentage of common ownership and control between the two companies will likely be sufficient to establish an affiliate relationship. Further, ownership of less than a majority of the company's shares, but control over the management of the business, may be sufficient to establish a subsidiary or affiliate relationship.    

(2)   The alien will be employed in an executive, managerial, or specialized knowledge capacity - An executive capacity means an assignment in an organization in which the employee directs the management of the organization, establishes goals and policies, exercises wide latitude in decision making, and receives only general supervision from high level executives, board of directors, or stockholders. Managerial capacity refers to a position where the person manages his department, supervises and controls the work of other professionals, has authority to hire and fire employees, and exercises discretion over day-to-day operations. Lastly, specialized knowledge means special knowledge of the company product, service, research, equipment, techniques, or management, or an advanced level of knowledge of the company's processes and procedures.

(3)   The alien has at least one continuous year of full-time employment abroad with a qualifying organization within the specified three years before filing the petition - Before 1990, the law required that the alien work with the foreign entity for one year immediately preceding his application. The Immigration Act of 1990 eliminated this language to broaden the scope of applicants. This means that the alien may be transferred to the company in the U.S. if he or she worked for the entity abroad continuously for one year at any time within the specified three year period. There is an internal conflict in the immigration laws whether the three year period means three years immediately preceding "the filing of the L-1 petition" or three years before the L-1 employee's "application for admission" to the United States. What's the difference? Imagine a foreign national who works abroad as a marketing manager for a company in Brazil and then decides to obtain a four-year university degree in the United States. She comes to the U.S. and remains in F-1 student status for four years.  At the conclusion of her studies, she wants to work as a marketing manager for the U.S. affiliate of the foreign company, and wants to change her status from F-1 to L-1. Under the "filing of the petition" interpretation, the case will be denied because her one year of employment abroad occurred more than three years ago. But under the "application for admission" interpretation, she meets the employment abroad requirement because she worked for at least one year as a manager abroad in the three years before applying for admission to the U.S. as an F-1 student.        

(4)   The alien's prior year of employment abroad was in a position that was managerial, executive, or involved specialized knowledge - The alien does not have to be transferred to the United States in the same capacity in which the alien was employed abroad. For example, if the alien was working with specialized knowledge abroad, he or she can still be transferred as a manager to the United States.

The L-1 visa is optimal for large multinational corporations that wish to transfer many employees, as well as self-employed foreign nationals who own businesses abroad and want to start a new office in the United States.  Multinational managers and executives may stay in the U.S. in L-1 status for up to 7 years, while there is a 5 year limit for specialized knowledge employees.  Unlike the H-1B visa, there is no quota on the number of L-1 visas available each year.  Finally, the L-1 visa allows foreign nationals to pursue a green card while simultaneously maintaining L-1 status.    

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H-1B Cap Count

Visas Available For Professional Positions  

As of May 13, 2011, U.S. Citizenship and Immigration Services (USCIS) has receipted 11,200 cap-subject H-1B petitions toward the cap of 65,000 for Fiscal Year (FY) 2012.  In addition, USCIS has receipted 7, 900 H-1B petitions toward the Masters exemption of 20,000.  Therefore, there are just under 54,000 cap-subject H-1B visas currently available and approximately 12,000 H-1B visas available under the Masters exemption. 

Each year 65,000 H-1B visas are released on April 1 for an employment start date of October 1.  Of this total, 6,800 visas are set aside for Singapore (5,400) and Chile (1,400).  An additional 20,000 H-1B visas are made available for foreign nationals who have earned a Masters or higher degree from a U.S. graduate school.  Some employers are entirely exempt from the H-1B cap, such as institutions of higher education, non-profit research organizations, and governmental research organizations. 

The H-1B visa allows employers to hire foreign nationals to fill a "specialty occupation," a professional position that normally requires a bachelor or higher degree, or the equivalent thereof through related work experience.  To work in a specialty occupation, the foreign national must meet the minimum requirements for the position by possessing a bachelor or higher degree, or its equivalent, in a specialty related to the occupation. 

Students in F-1 or OPT status that expires prior to October 1 may be granted an automatic extension of their F-1/OPT status and employment authorization until October 1.  To obtain the automatic extension, a sponsoring employer must file an H-1B change of status petition on the foreign national's behalf prior to the expiration of their F-1/OPT status and before the beginning of the 60 day grace period.

Learn more about the H-1B cap and who is eligible for the H-1B visa.