L VISAS: INTRA-COMPANY TRANSFERS
The L-1 intra-company transferee classification is appropriate for the transfer of specified types of employees within multinational companies. This category permits a U.S. company to temporarily transfer certain employees from a properly affiliated foreign company. The employee must be offered employment in either an executive / managerial position or in a specialized knowledge position to qualify for this classification. Executive / managerial transferees are given the L1A designation. Specialized knowledge transferees are given the L1B designation. Large employers may be eligible to file blanket L-1 petitions with the USCIS, rather than filing individual petitions for each employee.
To be eligible to file L-1 petition/s, a qualifying relationship must exist between the U.S. company and the foreign company. Qualifying relationships include parent company, branch, subsidiary or affiliate.
The transferred employee must have been employed by the foreign affiliate for at least one continuous year within the three years prior to coming to the United States.
L-1 visas can be issued up to the period as determined by Department of State. The maximum reciprocity limit for any country is five years (e.g., Japan and Germany) but is less than three years for many countries (e.g., Brazil, China, and Russia two years; Mexico one year). Accordingly, the new rule does not benefit all foreign nationals. For a list of the reciprocity schedule limits, visit: www.travel.state.gov. L-1 workers with individual petitions should specifically ask for L-1 visas valid for the reciprocity limit, pointing to the new regulation at 22 CFR 41.112.
L-1 Blanket Petition
An L-1 “blanket” petition is a single petition that can be approved for certain large, multinational companies, eliminating the need to file a separate L-1 petition for each employee the company wishes to transfer to the United States. The qualified employee of a company with approved blanket petitions applies at a U.S. consulate for the L-1 visa based upon the blanket petition and proof of appropriate prior employment with the company abroad.
A blanket petition may be used for visa applications by L-1A managerial and executive employees, as well as L-1 specialized knowledge professional employees. The use of the blanket does not alter the duration of the L-1 stay or remove the requirements to demonstrate the employee’s role as being within the L-1 requirements. L-1 blanket is NOT available for the transfer of L-1B specialized knowledge positions for nonprofessionals. To obtain the L1-Blanket the company must meet a set of specific requirements.
Petitioning U.S. Company:
- Must have an office and have been doing business in U.S. for at least one year
- Must have three or more domestic or foreign branches, subsidiaries, or affiliates and be engaged in commercial trade or services
- Must have U.S. annual sales of $25 million, a U.S. workforce of 1,000 or have received approval of at least ten individual L petitions in the previous 12 months
Employee / Beneficiary:
- Must meet requirements for the L-1, including working abroad for the parent company, affiliate, or subsidiary for one continuous year within the three years prior
L1 Visa Denial Reasons
Just like every other visa classification, not everyone who applies gets approved. Here are some of the common reasons that our firm has encountered concerning L1 denial:
Failure to Meet Employee Requirements
For managers applying for the L-1A, the USCIS will expect you to have a certain number of employees under your supervision. This is due to the fact that the USCIS has stated that its goal for the L-1 visa to become a method of creating jobs for U.S. workers.
However, the number of required supervised employees is not specified in the regulations and usually scales with the size of the U.S. branch or affiliate. Because the denial rate is rising on account of this rule, it is recommended that you manage at least 5-8 subordinate employees.
Salary Does Not Meet Standards for the Industry
A major red flag for the USCIS is if the proposed wages for the visa applicant are either significantly lower or higher than the industry standards. This is also dependent on the location of the position. For example, an IT manager in Detroit may average a much higher salary than in a smaller city or town. As an employer, you must be sure to check the prevailing wages for each position that will be filled by L-1 applicants.
Your Proposed Business Growth is not Feasible
There have been instances where employers will embellish their business plan to reflect unrealistic success in order to impress the USCIS. This is not a good strategy as the USCIS is rarely fooled by this tactic. Industry standards and local case studies can easily show how your branch is expected to perform. Exaggerations will only rouse the suspicions of the USCIS and increase the likelihood of an L1 denial.
Duties and Job Titles do not Match
The USCIS mainly issues an L1 denial when they have reason to believe that the employee transfer may be fraudulent. One red flag for this is if your duties do not match your position title. This means that simply having the word “manager” or “executive” in your title does not automatically qualify you for an L1 visa. You must be actively supervising and controlling the work of other employees or making large-scale decisions within the company.
For example, Daniel is applying to be an account executive for an online marketing company’s U.S. branch. His job duties include working with clients and ensuring that they receive and are satisfied with their products. He would most likely have his L1 denied due to the fact that, even though his title includes “executive”, his job duties do not demonstrate his ability to influence the company’s decisions.
Documents Filed Improperly
While this reason may seem self-explanatory, you may be surprised at how easy it is to make a simple mistake on your petition that could cost you the visa. Whether it’s having inaccurate or inconsistent information, having insufficient job descriptions, or filing with the wrong service center or in an unacceptable delivery method, there is a plethora of ways to incur an L1 denial.
Work is not Specialized
Perhaps the highest denial rate is carried by L-1B visa applications. This is because, many times, the USCIS does not deem the proposed duties as “specialized” work. It is often difficult to demonstrate that an employee is invaluable to the operation of the company and that a replacement U.S. worker could not be found and trained to do the same tasks.
This is another one of the more common reasons of denial that we find with our clients. Three years is a long time in the world of business or technology. In that time, it is entirely possible that your position may change during your stay under L1 status. However, depending on the nature of the new position, it may result in an L1 extension denial.
When you petition for an L1 extension, you are essentially re-petitioning for a new L-1 visa. That means that your new position must fulfill the requirements of either an executive, manager, or specialized employee. If it does not, then you are liable to have your L1 extension denied.
Here is an example:
Henry entered the U.S. with L1 status as a web developer for an online marketing company. However, within the first three years of being in the U.S., Henry’s company decides to abandon the web development department and transfer him to an on-call position.
Henry is likely to receive an L1 extension denial due to the fact that he is no longer serving as an employee with specialized knowledge.
While this should go without saying, being convicted of a crime in the U.S. is a common reason for L1 extension denial. This also goes for almost any immigration status. Even if you only served a sentence of a few months for a misdemeanor, it could still have a serious impact on your ability to extend your visa.
If you have been convicted of a crime in the U.S., talk to your immigration attorney before petitioning to see if your offense will result in having your L1 extension denied.
Suspicion of Fraud
One of the primary goals of the USCIS and the immigration policies put in place is to prevent both companies and individuals from taking advantage of the system.
For this reason, it is very important to avoid giving the USCIS any reason to suspect that your extension petition was filed fraudulently.
This means triple checking that your information is correct and does not conflict with any past information given in the previous petition. It also means working with an immigration lawyer to be sure that no suspicions will be raised to prevent both an L1 extension denial and a Request for Evidence (RFE).
Will the USCIS Always Issue an RFE?
There are times when the USCIS sees a discrepancy in your information or finds that your evidence is lacking, warranting a Request for Evidence to be sent. However, this will not necessarily always be the case. There is always the chance that you may have your L1 extension denied without an RFE. If you do receive an RFE, immediately take it to your immigration attorney to ensure that a prompt and detailed response is given that properly addresses each issue brought up by the USCIS.
What Are My Options After L-1 Extension Denial?
If your I-94 departure date has not yet expired, then you still have time to make a decision concerning your case. No matter what, start with finding a qualified immigration lawyer to advise you every step of the way. This way you can avoid the common pitfalls people tend to make when they are panicked about having to leave the U.S.
Here are some of the next steps that might be available to you:
Transfer Your Status
If you qualify for another nonimmigrant visa or even a green card, then you may want to consider transferring your status from L1 to a different status. However, this will require you to fulfill the qualifications for the new status as well.
For example, if you wanted to change your status to H1B status, you would need to have at least a bachelor’s degree and a specialty position in your company that is relevant to your education.
If you are interested in immigrating to the U.S. permanently, then L1 status allows it through a condition called “dual intent”. Depending on your qualifications, you may be eligible for one of the employment-based green cards like the EB-2 or the EB-3.
L1 Grace Period
There are many questions surrounding whether or not a grace period comes into effect after you receive an L1 extension denial. The answer, unfortunately, is no. There is no official grace period that proceeds a denial.
However, this does not necessarily mean that you will be deported or considered “out of status” if you do not leave right on your I-94 departure date. The immigration officer reviewing your case may choose to be lenient especially if your reasoning is sound.
With that being said, you should always contact your immigration attorney before making any decisions like this one. If the officer considers you “out of status”, then you may risk being temporarily barred from re-entering the U.S. depending on how long you overstayed your departure date.
Outside of transferring your status, you may be able to appeal your case or file a Motion to Reopen or Reconsider. However, this is a very complex and involved process that should be discussed at length with your immigration attorney.
L1 Extension Denial
If you are already on L1 visa status and have almost completed your initial three-year stint in the U.S., then you may want to file for an L1 extension. However, this can also be easily denied by the USCIS.
To have your extension approved, you will need to prove two things:
- You have been employed throughout your stay
- Your job duties and salary have not changed in a way that disqualifies you for L1 status.
If you are unable to demonstrate these things, then there is a high likelihood that you will have your L1 extension denied. An immigration attorney can help you organize your facts so that you can present the best possible case to the USCIS and limit the possibility of being denied.
What to Do After Denial
If you have your L1 visa denied, there are a few things that you can do to work in the U.S. under that same company. Always be sure to work very closely with a qualified immigration attorney after an L1 denial in order to determine your options and to ensure that you are making the correct legal decisions.
If your sponsoring company already has an established and active branch or affiliate in the U.S., then you may be eligible to apply for an H-1B visa instead. While this visa option does require a bachelor’s degree and is very competitive, the requirements for an H-1B specialty position are not as stringent as the requirements for an L1 employee with specialized knowledge.
On the other hand, if you are not qualified for any other work visa, then you have the option to appeal your L1 visa denial. To do this, you can either file an appeal with the Administrative Appeals Office (AAO) or you can appeal to a U.S. District Court directly.
Appealing to the AAO often takes at least six months and generally results in an affirmation of the previous denial by the USCIS. Because of this, choosing to appeal to the AAO is usually not recommended. However, consult with your immigration lawyer to be sure.
While, in many cases, you must first appeal to the AAO before moving on to a District Court, there are some situations that allow you to go directly to a judicial review. In this case, you would need to prove that the L1 denial by the USCIS was a decision that was arbitrary, capricious, or irrational.
While this may seem like a golden opportunity to overturn the USCIS’s L-1 visa denial and gain approval, it is important to have your facts in order by having them compiled by an attorney that knows immigration law inside and out.
L1 Visa Extension or Renewal
The L1 visa is a nonimmigrant work visa that allows international companies to relocate certain workers from offices outside the U.S. to an office, affiliate, subsidiary or branch inside the U.S. It also allows for those employees to start new branches for their employers.
An L1 visa extension can be granted in two-year increments at a time up to the maximum duration for each visa category. The L-1A visa for managers and executives has a maximum period of stay of seven years while the L-1B visa for workers with specialized knowledge has one for five years. These refer to the actual time spent in the United States which means that any period of time spent outside the U.S. for business or pleasure reason can be recaptured while seeking an extension.
The process for obtaining an L1 visa extension is very similar to the process involved with getting the initial L1 visa. Essentially, your employer just needs to file a separate petition on your behalf before the departure date on your I-94 expires.
L1 Visa Extension Required Documents
To file an L-1 visa extension, you will be required to submit several documents to USCIS. These include:
- Proof that the beneficiary has been employed since living in the country
- Evidence of the beneficiary’s degree or its foreign equivalent that is relevant to his or her work in the U.S.
- Letter from foreign qualifying employer detailing the beneficiary’s dates of employment, responsibilities, and salary in the previous 3 years of employment
- Support letter from petitioner which includes alien’s salary, work schedule, job duties, terms of employment, etc.
- USCIS filing fee
- Recapturing Time Outside the U.S.
- In order to recapture time spent outside the country, you’ll need to submit a summary of your travel itinerary including the number of days spent overseas. You’ll also need evidence showing your physical presence outside the country. Examples include boarding passes, plane tickets, passport stamps and other records of your departure.
- If you fail to submit these documents USCIS will deny your request to recapture time straightforward and not even bother sending a request for evidence.
- A completed I-129 Petition for a Nonimmigrant Worker
If you are applying for an L1 visa extension and you wish for your L2 spouse and/or dependents to have their visas extended as well, your employer must file an I-539 form along with your I-129.
Difference Between Regular and Blanket Visa Extensions
There are two types of procedures for the L1 visa extension. The regular extension requires an application and approval for each individual beneficiary. On the other hand, the blanket visa extension is for employers that hire a significant number of intra-company transfer employees, allowing them to file one petition for many workers rather than just one.
Because it is so important to file the appropriate paperwork for an L1 visa extension, it is always highly recommended to work alongside a qualified immigration attorney to be sure you are making the right decisions for your L1 visa extension.
L1B Blanket Visa Extension
An L1 blanket petition is used by large companies to pre-qualify L1 employees for a transfer. The benefit of an L1 blanket petition is once it’s approved, the company is able to transfer employees rather quickly without the need to file separate petitions. L1B blanket visa extensions may be added on indefinitely.
To qualify for an L1 blanket extension petition, the U.S. company must have at least 1,000 employees, must have obtained L1 visas for at least 10 employees in the past year and have combined sales of at least $25 million.
Blanket Validity Period
The initial validity period of an approved blanket petition is three years, but the petitioner can file for an extension of the blanket petition for up to seven years. Should a petitioner fail to file for an extension, or if USCIS denies an extension request, the petitioner is barred from filing a new blanket petition for three years.
L-1A or L-1B nonimmigrants initially seeking admission under a blanket petition can be admitted for a period of three years, even if the initial validity of the blanket petition expires before the end of that three-year period. Thereafter, the term can be extended up to seven years for L-1A holders or up to five years for L-1B holders.
Spouses and Relatives of L1 Workers
Transferring employees (L1 workers) can have their spouses and children (unmarried) accompany them by seeking an L2 non-immigrant status. If their petition is approved they will be granted the same period of stay as the L1 worker.
However, it is important to note that filing for an extension on your L1 visa does not automatically grant an extension to your L2 dependents or spouse. To request a change of status or extension of stay under L2 status, while in the U.S., the relatives may apply together on Form I-539 Application to change or extend nonimmigrant status.
If you are a spouse of an L1 worker you are permitted to apply for work authorization by filling out Form I-765 Application for Employment Authorization with the fee. Once approved there aren’t any restrictions on where the L2 spouse can work.
L1 Visa Extension Processing Time
The L1 visa extension processing time varies depending on the service center that is processing your I-129 petition. If it is a popular service center with a backlog, the processing time can take 8 months or more. On average, many petitions are processed in about 6 months.
Because all L visa extensions require the same I-129 petition, the processing times usually do not differ. This means that the L1A extension processing time and the L1B extension processing time will not necessarily be different because of their classification.
L1 Premium Processing
L1 premium processing is available (for an additional fee) when the employer is filing the petition. Otherwise, the regular processing fee is available. Essentially what premium processing does is provide an expedited application process. According to USCIS, your petition should be handled within 15 calendar days if you select this option. As it stands the current fee is $1,225.
It is important to note that opting for premium processing will not guarantee that your L1 visa renewal will be approved. It only guarantees a 15-day processing time for your petition. If the USCIS fails to process your petition, you will be refunded the premium processing fee.
From L1 Visa to Green Card
If you are aiming to change your visa status from L1A to EB-1C green card, your employer will first need to submit a Petition for Alien Worker (I-140 form) to the USCIS. Assuming priority dates are current, your employer can jointly file for your adjustment of status. If you (applicant) are living outside the U.S. your must wait for your I-140 to be approved through consular processing.
For those on L-1B status, you will be required to go through PERM Labor Certification process. You’ll then need to file for your green card under EB2 or EB3 status depending on your eligibility. A qualified immigration attorney can help you determine which option is most appropriate.
L1 Visa Extension Fees
Filing for an L1A or L1B visa extension is very similar to filing for the initial visa. Therefore the fees are also very similar. Your employer will be responsible for these costs:
- I-129 basic filing fee of $460
- Fraud Prevention and Detection Fee of $500
It is important to note that the Public Law 114-113 fee and ACWIA fee are only applicable to the initial filing. As for the premium processing fee, it can be paid by either you or your employer. Depending on your situation, premium processing may or may not be appropriate for your case.
It is also important to note that filing for an extension for any L2 dependent visas will subject your employer to a $370 filing fee for the I-539 petition.