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The L-1A visa is a temporary non-immigrant visa which allows companies, operating both in the U.S. and abroad, to transfer certain executives and managers from its qualifying foreign entity to the U.S. office for a maximum of 7 years. There are a couple of L-1 visa categories; however, the L-1A visa is exclusively designed for the intra-company transfer of executives or managers.
The legal definition of management and executive roles for the purpose of the L-1A visa is strict and limited, and a detailed description of the position and the duties to be performed in the U.S. (and those currently performed abroad) must be proven with documentary evidence.
An executive capacity means the following:
A manager is defined as being able to primarily:
For foreign employers seeking to send an employee to the United States as an executive or manager of a newly established U.S. office, the employer must also show (in addition to the criteria listed above):
The transferring employee may be accompanied or followed by his or her spouse and unmarried children who are under 21 years of age. Such family members may seek admission in L-2 nonimmigrant classification and, if approved, generally will be granted the same period of stay as the employee. L-2 spouses may apply to get employment authorization to work in the U.S.
The L-1A visa will initially be granted for a period of up three years which can be extended in two year increments to a maximum of seven years. However, for new business L-1A petitions, the initial approval period is only for one year. Thereafter, extensions are in two year increments to the same maximum of seven years.
Those on L-1A visas may also be eligible to apply for the First Preference Employment-Based Green Cards. Click here to learn more about Employment-Based Green Cards.
The United States the L-1 visa is a temporary non-immigrant visa which allows companies, operating both in the U.S. and abroad, to transfer certain classes of employees from its foreign operations to the U.S. There are a number of L-1 visa types; however, the L-1B visa is exclusively designed for the intra-company transfer of staff with specialized knowledge.
To qualify for L-1B classification in this category, you must be able to show:
Specialized knowledge is defined as:
For example, it is not enough for a specialty cook or chef to have knowledge of a restaurants special recipes, they are not considered to have specialized knowledge.
If everyone is specialized, then no one is. In other words, the specialized knowledge requirement is intended for “key” personnel. While all experienced employees in a small company may be “key”, for a larger company there should be a distinction between “key” and normal personnel. This could be made based on the length of experience, level of knowledge, or level of responsibility. A specialized knowledge employee has more skills or knowledge than the ordinary employee; however, this doesn't require an “extraordinary” level of skills, merely more than that of the ordinary employee in the company or field.
The rate of L-1B petitions being denied has risen from 30% in 2012 to 34% in 2014. Around 50% of all petitions will receive a Request for Evidence (RFE) with around 35% ultimately being denied leaving 65% eventually being approved.
In Fiscal Year 2012, 18,740 L-1B petitions were processed. Out of those, 8,688 were sent Requests for Evidence, so almost half of all L-1B petitions were sent back to the petitioner for further questions. Out of those, 6,068 were denied. In other words, in 2012, if an L-1B received an RFE, there was a 70% chance of denial.
In Fiscal Year 2013, which ended on September 30, 2013, 17,723 applications were filed, so essentially 1,000 less petitions than the year before. In spite of this, 8,363 petitions (so again almost half) were sent back to petitioners with an RFE, and out of these, 6,242 were denied. So in this year, the denial rate was even higher with almost 75% of all petitions, which received RFE’s, being denied.
About 95% of all L-1B petitions prepared by our firm are approved, 30% more than the average norm.
These statistics are further evidence of the heightened scrutiny given to this L-1B visa category. Our firm files many L-1B petitions every year, and we estimate that at most, only about 5-7% of our petitions are denied. We spend an enormous amount of time trying to gather detailed information about the company, the company’s business and products, the U.S. position and the specialized knowledge that the beneficiary possesses. Our L-1B petition letters are generally in excess of 20 pages, and our responses to RFEs are usually even longer.
Our Recommendations to increase your chance of success.
We cannot emphasize the importance of providing detailed information about the petitioner, the beneficiary, and specific the plans of the company, as well as documentation for every aspect of the specialized knowledge required and possessed.
Sometimes, even if the petition covers all of requisite factors and is well presented, USCIS doesn’t agree and denies the petition. As USCIS has reported, they deny about one (1) out of every three (3) L-1B cases. Admittedly, this presents a huge risk to a company wishing to bring in foreign nationals from an affiliate company abroad.
If a company is able to use the L-1 Blanket Program, however, we have found that in many consulates, specifically in Japan, that the L-1B adjudication is more reasonable and consistent. Therefore, we generally recommend using a blanket at a U.S. Embassy abroad vs. an individual petition filed with USCIS.
For foreign employers seeking to send an employee to the United States as the first employee of a newly established U.S. office, the employer must also show (in addition to the criteria listed above):
The transferring employee may be accompanied or followed by his or her spouse and unmarried children who are under 21 years of age. Such family members may seek admission in L-2 nonimmigrant classification and, if approved, generally will be granted the same period of stay as the employee.
The L-1B visa will also initially be granted for period of up to three years, which can be extended in two year increments for a maximum of five years. However, for new business L-1A petitions, the initial approval period is only for one year. Thereafter, extensions are in two year increments to the same maximum of five years.
On completing the maximum allowable period in L-1 status, the employee must be employed outside the United States for a minimum of one year before a new application is made for either L or H status.