By: David Sindell ([email protected])
Section 101(a)(15)(L) of the Immigration and Nationality Act (INA)14 defines the terms of eligibility for L-1 intracompany transferee status. Regulations on acquiring, maintaining, and extending L-1 status are found at 8 CFR §214.2(l), and interpretive guidance is contained in chapter 32 of the Adjudicator’s Field Manual AFM).15 DOS regulations concerning L-1 visa eligibility and issuance are reflected in 22 CFR §41.54 and the accompanying notes in 9 Foreign Affairs Manual (FAM)16 402.12. Useful information is also found in cables issued by the DOS and memoranda from USCIS and legacy Immigration and Naturalization Service (INS).
It is important to always remember that the applicable standard of proof in an L-1 petition that of preponderance of the evidence, and that “preponderance of the evidence” means “more likely than not.” It is sometimes appropriate to mention this standard when responding to requests for evidence where USCIS seems to be imposing a more stringent standard not applicable to L-1 visas. The petitioner does not need to remove all doubt from the adjudication. 
In order to transfer an employee from an entity abroad to a U.S. entity, the petitioner must be part of a qualifying organization. The qualifying organization must be a U.S. or foreign firm, corporation, or other legal entity. The organization also must be doing business as an employer in the United States and in at least one other country through a relationship defined in the regulations, including parent, branch, subsidiary, or affiliate.
Although this criterion may seem quite straight forward, when we look at many of the complex corporate relationships that exist through ownership through holding companies and many entities, it is often recommended to make a corporate chart and add it either to the petition letter or as separate evidence to give USCIS a clear picture of the corporate structure to avoid later confusion. In addition, corporate minutes, and formation documents and as applicable, stock certificates evidencing ownership and qualifying relationship.
L-1 employees must have worked abroad for the foreign entity for one continuous year within the three-year period preceding the filing of the I-129 petition In November 2018, USCIS issued a policy memorandum, “Satisfying the L-1 1-Year Foreign Employment Requirement,” which clarifies that: (i) L-1 beneficiaries must generally be physically outside the United States during the one year of continuous employment, and (ii) the petitioner and the beneficiary must meet all requirements, including the one-year requirement, at the time the L-1 petition is filed.”
If a foreign national is already in the US as non-immigrant, there is a specific test that the memo attempts to set out. USCIS suggests the following analysis:
(i) determine the dates the beneficiary worked for the qualifying organization abroad.
(ii) ascertain the length of any breaks in the beneficiary’s qualifying employment during the three years before the petitioner filed the L-1 petition (e.g., if the beneficiary has lawfully worked for a qualifying organization in the United States as a principal beneficiary of an employment-based nonimmigrant petition or application, adjust the three-year period accordingly); and
(iii) subtract the total length of all the breaks identified in step 2 from the relevant three-year period.
If the result is a continuous one-year period within the relevant three-year period, then the petitioner has met the one-year foreign employment.
For example, a beneficiary works for the foreign entity abroad from January 2020- March 2022 and then works for another related organization in E-2 status from March 2022 to March 2023, USCIS would look at the three-year period prior to the E-2 entry and since here, the beneficiary worked for at least one year, the employee would qualify for L-1 status.
Although the petitioner would most likely encounter a high level of scrutiny, applying for an independent contractor who is providing services overseas to a qualifying organization who worked under a contract, was presented to the public as employees, and worked exclusively for the company, and exhibited every indicia of employment with that foreign entity should qualify for L-1 status.
L-1 visa holders can enter the US in an “executive capacity,” “managerial capacity,” and “specialized knowledge capacity” These criteria are well defined by statute and regulations. Caps on the authorized period of stay are set at seven years for managers and executives (L-1A), and five years for specialized knowledge employees (L-1B).
Off-Site L-1B Employment is often a subject which comes up in L-1 practices and it is important to note the permissible parameters of off-site employment by L-1 workers. Impermissible off-site L-1b employment occurs when L-1 workers are “stationed primarily” at the worksite of an employer unaffiliated with the petitioner, and one of the following situations applies:
- The L-1 employee will be “principally” under the “control and supervision” of the unaffiliated employer; or
- The placement of the L-1 employee at the third-party site is “essentially an arrangement to provide labor for hire for the unaffiliated employer,” rather than a placement in connection with the provision of a product or service involving specialized knowledge specific to the petitioning employer.
Permissible L-1b offsite employment must include facts whereby the petitioner retains ultimate authority over the worker. Although the third party for which the L-1B worker is providing services “may provide input, feedback, or guidance as to its needs, goals, etc.,” but it cannot control the work of the L-1B employee “in the sense of directing tasks and activities.”
There is a special provision which applies to L-1 transferees who come to the United States for the purpose of opening a new office. A “new office” is defined as “an organization that has been doing business in the United States through a parent, branch, affiliate or subsidiary for less than one year.” This is a great provision for those are starting a new business, since the usual evidence regarding operations, subordinate employees and other provisions don’t apply. One of the favorite pet peeves of the service is to look at the office space to ensure that there is sufficient square footage, that the lease is for the right length of time, covering the period of stay of the L-1 transferee, photographs etc. The financial viability of organization, ownership, and control, and finally a detailed business plan is key to success. It is also essential to forewarn the petitioner that the extension will be subject to a high level of scrutiny and the extension will be rigorously adjudicated. A successful extension will require substantial documentation of evidence of business operations.
The L-1 blanket provision is advantageous in promoting expediency, reliability, and flexibility. If a company qualifies for a blanket, a qualifying can apply for an L-1 visa directly at a U.S. consulate without first obtaining approval of an individual I-129 petition by USCIS.
Generally, the consular official has the authority to determine if the employee is eligible to receive the L-1 visa. Upon approval of the beneficiary’s blanket L petition, the consular officer will endorse an I-129S form with a notation regarding the classification and validity period. It is important to note that under the FAM, consular officers “may grant L classification only in clearly approvable applications. One would surmise that this standard is higher than the USCIS standard of preponderance of the evidence we discussed above. However, it has been our experience almost universally, with the exception of India and sometimes China, that DOS takes a much more liberal approach in defining which constitutes managerial, executive and specialized knowledge in the L-1 context. Therefore, use of a blanket, where available, affords the petitioner, a quicker, cheaper, and higher chance of success than through USCIS. That being said, it is incumbent upon the practitioner to be familiar with the consular post and how they adjudicate L-1 Blanket petitions since the decision by the consular officer is, according to the FAM, final. If denied, the beneficiary can apply again but the burden of the first denial is often too difficult to overcome. In the alternative the beneficiary can continue to seek L classification by filing a form I-129 with USCIS.
Finally, it is important to note that L-1 petitions have the lowest approval rate amongst all employment-based nonimmigrant petitions and investor applications. L-1s are also the most likely to be issued a request for evidence (RFE).
In fiscal year 2022, U.S. Citizenship and Immigration Services (USCIS) denied 1 in 6 (16.4%) L-1 petitions, approving 83.6% of cases filed. More than a third (36.5%) were issued an RFE. Of those issued an RFE, fewer than two thirds (65.1%) were approved.
So, to simplify, 36.5% of all L-1’s were issued requests for evidence (RFE), and 1/3 of those were denied, so if a beneficiary receives an RFE for an L-1, there is a 1/3 chance it will be denied and indeed, over 1 out of 3 L-1 cases receive an RFE.
In the same year, other business petitions had extraordinarily different results: USCIS approved 98% of H-1B petitions and issued RFEs in only 9.6% of the cases; approved 94.6% of O petitions and issued RFEs in 20.7%; approved 93.2% of P petitions and issued RFEs in 19.6%; and approved 91.4% of TN petitions and issued RFEs in 17.1%.
USCIS is notorious for issuing lengthy RFE’s on L-1 petitions, particularly on those filed on behalf of owners and top executives or managers of small businesses. Officers often question whether the beneficiary is an executive or manager abroad and will be an executive or manager in the United States. Often no matter what you explain, or document, officers will ask about the person’s qualifications abroad regardless of how well these requirements were documented in the initial petition, and in violation of the USCIS Policy Manual, which states that “[t]he regulations do not require submission of extensive evidence of business relationships or of the beneficiary’s prior and proposed employment.”
 USCIS Policy Memorandum, “L-1B Adjudications Policy,” AILA Doc. No. 15081801, at pages 5–6.
 8 CFR §214.2 (l)(1)(ii)(G)–(L).
 See USCIS Policy Memorandum, “Satisfying the L-1 1-Year Foreign Employment Requirement,” (Nov. 15, 2018), AILA
Doc. No. 18112933
 See “AILA Practice Pointer: New USCIS L-1 Policy Ushers in Restrictive Interpretation of the One-Year Abroad Requirement,”(Jan. 17, 2019), AILA Doc. No. 19011730
 INA §101(44)(A)–(B); 8 CFR §214.2(l)(1)(ii)(D); 8 CFR §214(c)(2)(B).
 L-1 Visa Reform Act of 2004, Pub. L. No. 108-447, 118 Stat. 2809 (2004). at SEC 412.
 USCIS Memorandum, W. Yates, “USCIS Memo Implementing L-1 Reform Act of 2004,” (July 29, 2005), AILA Doc. No.
 8 CFR §§214.2(l)(3)(v) and (vi).
 8 CFR §214.2(l)(1)(ii)(F).
 8 CFR §214.2(l)(4).
 8 CFR §214.2(l)(1)(i).
 8 CFR 214.2(l)(5)(ii)(E).