VISAS FOR INTRA-COMPANY TRANSFEREE EMPLOYEES (L-1A … · VISAS FOR INTRA-COMPANY TRANSFEREE...

Presenter: Edward C. BesharaPresident & Attorney at Law

VISAS FOR INTRA-COMPANY

TRANSFEREE EMPLOYEES (L-1A VISA)

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IndexTopic Slide #Presentation Title………………….....……………….…………………………………. 1Index……………………………………………...……...………………………………. 2 - 3Introduction……………………..................................................................................4 - 6Legal Requirements…………………………………………………………………….. 7 - 16• Employees in General……………………......................................................... 7 - 9• Executive……………………………………………………………………………. 10 - 11• Management………………………………………………………………………… 12 - 13• Specialized Knowledge……………………………………………………………. 14 - 16• Organizational Hierarchy.................................................................................. 17 - 18• Qualifying Relationship Between Foreign & U.S. Business Operations……… 19 - 21Foreign Employer Business…………………………................................................. 22 - 28• Continuance of Operations………………………………………………………… 22 - 23• Business Activity……………………………………………………………………. 24 - 25• Documents Required………………………………………………………………. 26 - 28U.S. Business Entity………….................................…………………………………. 29 - 38• New Office………………………………………………………………………….. 29 - 32• Existing Office……………………………………………………………………… 33 - 35• Blanket Petitions…………………………………………………………………… 36 - 38Period of Employment……………...................……………………………………….. 39 - 40• Generally…………………………………………………………………………….. 39• New & Existing Office………………………………………………………………. 40Intent to Return Home………………...............…………………………………………41 - 42Gaining L-1 Status in the U.S.………………..................…………………………….. 43 - 47• U.S. Employer Petition…………………………………………………………….. 43• Approval Notice…………………………………………………………………….. 44• In the U.S. Gaining L1 Status……………………………………………………… 45 - 47

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IndexTopic Slide #Gaining an L-1 Visa at U.S. Consulate……………………...................…………….. 48• Process at U.S. Consulate………………………………………………………… 49 - 50• Family Members at the U.S. Consulate………………………………………….. 51• Alien Spouse Employment Authorization………………………………………… 52Entry at U.S. Border………………………………………………………………………53 - 57• Inspection……………………………………………………………………………. 53• Canadians…………………………………………………………………………… 54 - 55• Arrival Departure Record Card……………………………………………………. 56 - 57In the U.S…………………………………………………………………………………. 58 - 67• Stay Period…………………….……………………………………………………. 58 - 59• Extension of Stay

– Generally………………………………………………………………………. 60– End of Term of Stay…………………………………………………………...61

• Extension of Stay New/Existing Office…………………………………………… 62 - 63• Extension of Stay: USCIS Policy vs. Economic Reality………………………… 64 - 67New L-1 Status or New L-1A Visa at U.S. Consulate…..……………………………. 68 - 72• Generally……………………………………………………………………………. 68• Petition Approval Sent to U.S. Consulate…………………………………………69• New L-1 Status Extension…………………………………………………………. 70 - 71• New L-1 Visa at U.S. Consulate………………………………………………….. 72Conclusion…………………………………………………………………………………73• Seeking Permanent Residency…………………………………………………… 73 - 75Disclaimer………………………………………...……………………………………… 76

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Visas for Intra-Company Transferee Employees: L-1A Visa

Presenter: Edward C. Beshara, Attorney at Law

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IndexTopic Slide #Presentation Title………………….....……………….…………………………………. 1Index……………………………………………...……...………………………………. 2 - 3Introduction……………………..................................................................................4 - 6Legal Requirements…………………………………………………………………….. 7 - 16• Employees in General……………………......................................................... 7 - 9• Executive……………………………………………………………………………. 10 - 11• Management………………………………………………………………………… 12 - 13• Specialized Knowledge……………………………………………………………. 14 - 16• Organizational Hierarchy.................................................................................. 17 - 18• Qualifying Relationship Between Foreign & U.S. Business Operations……… 19 - 21Foreign Employer Business…………………………................................................. 22 - 28• Continuance of Operations………………………………………………………… 22 - 23• Business Activity……………………………………………………………………. 24 - 25• Documents Required………………………………………………………………. 26 - 28U.S. Business Entity………….................................…………………………………. 29 - 38• New Office………………………………………………………………………….. 29 - 32• Existing Office……………………………………………………………………… 33 - 35• Blanket Petitions…………………………………………………………………… 36 - 38Period of Employment……………...................……………………………………….. 39 - 40• Generally…………………………………………………………………………….. 39• New & Existing Office………………………………………………………………. 40Intent to Return Home………………...............…………………………………………41 - 42Gaining L-1 Status in the U.S.………………..................…………………………….. 43 - 47• U.S. Employer Petition…………………………………………………………….. 43• Approval Notice…………………………………………………………………….. 44• In the U.S. Gaining L1 Status……………………………………………………… 45 - 47

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IndexTopic Slide #Gaining an L-1 Visa at U.S. Consulate……………………...................…………….. 48• Process at U.S. Consulate………………………………………………………… 49 - 50• Family Members at the U.S. Consulate………………………………………….. 51• Alien Spouse Employment Authorization………………………………………… 52Entry at U.S. Border………………………………………………………………………53 - 57• Inspection……………………………………………………………………………. 53• Canadians…………………………………………………………………………… 54 - 55• Arrival Departure Record Card……………………………………………………. 56 - 57In the U.S…………………………………………………………………………………. 58 - 67• Stay Period…………………….……………………………………………………. 58 - 59• Extension of Stay

– Generally………………………………………………………………………. 60– End of Term of Stay…………………………………………………………...61

• Extension of Stay New/Existing Office…………………………………………… 62 - 63• Extension of Stay: USCIS Policy vs. Economic Reality………………………… 64 - 67New L-1 Status or New L-1A Visa at U.S. Consulate…..……………………………. 68 - 72• Generally……………………………………………………………………………. 68• Petition Approval Sent to U.S. Consulate…………………………………………69• New L-1 Status Extension…………………………………………………………. 70 - 71• New L-1 Visa at U.S. Consulate………………………………………………….. 72Conclusion…………………………………………………………………………………73• Seeking Permanent Residency…………………………………………………… 73 - 75Disclaimer………………………………………...……………………………………… 76

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Introduction

• The U.S. Employer (new office or existing office business operations) can file a I-129L Petition for a multinational, executive, manager or employee with specialized knowledge to become a non-immigrant L1 employee.

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Introduction• The U.S. and foreign company/business must

have a Qualifying Relationship.

• U.S. based company can be an affiliate branch, subsidiary, has a parent office in a foreign country or is a parent of the foreign operation may request and obtain approval for foreign based employees, who are managerial, executive, or specialized knowledge employees, to legally enter the U.S. with an L-1 visa and be employed by the U.S. based company or organization.

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Introduction

• The L-1 Visa or status is a non-immigrant visa/status. The intent is to only stay in the U.S. for a fixed temporary period.

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Legal Requirements

• Employee in General– Generally: The alien employee must have

been employed full time outside the U.S. by the foreign based company for at least one year prior to the filing of the U.S. based company’s request for that employee to enter & work in the U.S.

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Legal Requirements

• Employee in General– Alien employee spends two weeks in the U.S.,

the alien employee must show that at least one year and two weeks was spent working for the foreign based company.

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Legal Requirements

• Employee in General– The U.S. based employer must be requesting

that the alien employees are coming to work for the U.S. based company either in a managerial, executive, or specialized knowledge position.

– Alien employees must have also worked in one of these positions in the foreign based company.

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Legal Requirements

• Executive: Employee– The Executive primarily engaged in 100%

executive duties

– Primarily directs the management (higher level managers) of the organization and major functions of the organization

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Legal Requirements

• Executive: Employee– Establishes the goals and policies of the

organization and exercises wide latitude in discretionary decision making over the organization.

– Executives only receive general direction from higher lever executives, Board of Directors

– Titled position: President, Vice President, Chief Financial Officer

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Legal Requirements

• Managerial: Employee– The Manager primarily engaged in 100%

managerial duties

– Primarily manages the department functions of the organization

– Manages and directs the work of professional, supervisory and other lower level managerial employees

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Legal Requirements

• Managerial: Employee– Authority to hire, dismiss, recommend

promotions and bonuses

– Exercises discretion over day to day operation of employee functions

– Titled position: Financial Manager, Marketing Manager

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Legal Requirements

• Employees: Specialized Knowledge– Alien employee must perform duties that are

key and essential to U.S. based company’s operations. Knowledge is proprietary in nature and known only to the alien employee

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Legal Requirements

• Employees: Specialized Knowledge– Example: Knowledge is related to

manufacturing process, technique, or formula which may be protected by copyright or patent, and not known or disclosed to other employees of the company or other persons in same industry.

– This indicates the alien is uniquely qualified for the temporary job in the U.S.

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Legal Requirements

• Employees: Specialized Knowledge– The specialized knowledge not available in

the U.S. and not readily available to be taught to U.S. employees.

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Legal Requirements

• Organization Hierarchy Chart

– The Organizational Chart or diagram stating job titles, brief description of duties, and clearly showing the different levels of the jobs may support the alien employee’s position as either primarily executive or managerial.

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Organization Hierarchy Chart• The organization and the business activities will have

a determining influence on the organizational hierarchy.

President

Vice President

Public Relations Director

Corporate Recruitment Director

Financial Director

Media ManagerOperations Manager

Marketing Director

Supervisor

Personal Assistant

Receptionist AdministrativeAssistant

Financial Manager

Accountants/Bookkeepers

Assistants

Staff

Professionals

Staff

Supervisor

Professionals

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Legal Requirements

• Qualifying Relationship Between the Foreign and U.S. Employer Operations– Ownership of stock or shares, member

certificates proves Qualifying Relationship

– U.S. based company requesting foreign personnel from the foreign based company must have an affiliation or subsidiary or parent relationship with the foreign based company

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Legal Requirements

• Qualifying Relationship Between the Foreign and U.S. Employer Operations

• Example: 1. Parent/Subsidiary Relationship: If it is shown

that the U.S. based company owns 51% of the overseas operation or vice versa, the required relationship occurs (e.g. 49% of U.S. operation may be U.S. citizens) – And is the basis upon which the alien employees

may be transferred to the U.S. based company

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Legal Requirements

• Qualifying Relationship Between the Foreign and U.S. Employer Operations– Example:

• 2. Affiliate Relationship: Same individual owners of foreign company same individual owners and in same and controlling proportion of U.S. company.

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Foreign Employer Business

• Continuance of Foreign Employer Operations– Continuance of foreign based company’s

operations will be the basis upon which the alien employee is permitted

– Allowed to continue to work for the U.S. based employer for the fixed temporary period of time.

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• Continuance of Foreign Employer Operations

– If the foreign based company’s operations cease to exist, then alien employee may not have a legal basis to continue to work for the U.S. based employer

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• Business Activity– The foreign entity, which may be a parent,

branch, affiliate, or subsidiary (during the time the intra-company transferee was employed abroad and during the time employed in the U.S. based entity), must be doing business.

– That is, the continuous activity of the provision of goods and services.

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• Business Activity– Please note, the foreign entity from which the

intra company transferee was employed may cease to exist.

– As long as there is in existence another active foreign entity, and a qualifying relationship exists between the foreign and U.S. entity, the L-1 Status may be maintained.

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• Documents Required

– Our instructions to the foreign entity may include U.S. based terminology so these are only a guide to obtain documentation to prove business activity

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• Documents Required– The documents prove an active foreign

business entity include:

• Corporate or business registration certificates

• Business tax returns or receipts filed with a government agency

• Government certificates showing employment of individuals

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• Documents Required• The documents that prove an active

foreign business entity include:– Any filings or correspondence with

government agencies, showing the name of the entity and the year of operation

– Brochures, advertisements, articles, letterhead, business cards referring to the business entity

– Lease or ownership agreements, plans for expansion referring to the business entity.

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U.S. Business Entity

• Business Activity

• New Office– Less than one year

• Transferee’s may be employed in U.S. business entity when considered a new office, that is, an entity which has been doing business for less than year [8CFR214.2(1)(3)(V)(VI)]

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• New Office– Documents Required for new office

• Lease or purchase of physical premises for administrative offices, and if needed retail or warehouse facilities

• Lease or purchase of office furniture equipment and stationary

• Please note, existence of a U.S. corporate structure

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• Articles of incorporation, By-laws, Occupational licenses will be evidence that preparations have been made to set up a new U.S. corporate entity.

• Business plan prepared by U.S. certified public accountant showing capitalization of the company, within the first year the entity will support an executive managerial and staff personnel, be revenues from the business activity

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• Purchase of stationary, letterhead, business cards

• Purchase or lease of corporate vehicles

• Contacts with vendors, buyers or sellers for the U.S. business goods or services

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• Existing Office– More than one year

– Documents required in order to submit a Petition for an existing U.S. business activity

• Same documents stated above for a new business, but existing business documents will show that a lease has been in existence for more than one year.

• U.S. certified public accountant’s report indicating revenues have been generated through sale of goods and/or services, occupational license, corporate resolutions or minutes have been in existence for more than one year


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• Existing Office– Documents required in order to submit a

Petition for an existing U.S. business activity

• U.S. corporate tax returns, employee wage filings with government agencies, such as workers compensation filings

• Articles, advertisements, referring to the U.S. business entity over a one year period


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• Existing Office– Documents required in order to submit a

Petition for an existing U.S. business activity

• Contracts with buyers or sellers, bank letters referring to business activity for more than one year

• Bank loan or credit line agreements


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• Blanket Petitions

– U.S. based employer may request in the Petition, their desire to employ more than one alien employee


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• Blanket Petitions– Show legal eligibility (e.g. previous one year

experience in an executive capacity) for an L-1 Visa

• Documents Required to Prove

–U.S. based employer has been operating for at least one year

–U.S. based employer has at least three domestic or foreign branches or subsidiaries, and either


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• Blanket Petitions– Documents Required to Prove

• U.S. based employer in the past year has hired at least ten intra company executives, managers, or specialized knowledge personnel, or

• U.S. sales total at least $25 million, or

• U.S. employer hires 1,000 employees


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Period of Employment

• Generally:

– U.S. based employer intend to hire alien employee on full time basis for a fixed temporary period of time.

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Period of Employment

• The period of time for alien employee will be for1. New Office

• 1 year with an extension of two years for a total period of 7 years

2. Existing Office

• 2 years with an extension of two years for a total period of 7 years

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• Alien may need to demonstrate and prove the intent to return home.

• Intent must be to work in U.S. only for a fixed temporary period of time.

Intent to Return Home

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• Alien may need to show that they have binding ties and desire to return home.

• Show that the foreign based employer will desire to continue the employment of the alien employee upon their return to the home country.

Intent to Return Home

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Gaining L-1 Status in the U.S.

• U.S. Employer Files Petition

• U.S. Employer Approaches USCIS– U.S. based employer will file their request in

the form of a petition with USCIS.

– The petition must be sent to the appropriate office or Regional Service Center (Please refer to Dept. of Homeland Security USCIS website for appropriate location and addresses for the Regional Service Centers).

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• Approval Notice

• U.S. Employer Approaches USCIS– Notice of approval for the U.S. based

employer

– Notice of approval to U.S. Consulate location at which the alien employee will seek to obtain the L-1 Visa

– Family members, spouse and unmarried children under 21, may be included in the U.S. based employer’s petition request

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• In the U.S. Gaining L-1A Status– Alien may have entered U.S. under a different

nonimmigrant category, such as a business visitor or visitor and was given an I-94 arrival/departure card with the time of departure and will be in legal status until the date of departure.

– Alien may decide to set up an affiliate or subsidiary U.S. based business or the alien may decide to work for the U.S. based employer


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• In the U.S. Gaining L-1A Status– U.S. based employer will request approval

from USCIS to allow the alien employee to work in U.S. as intra-company transferee employee.

– The employer’s petition request will also request to change status of the employee from their nonimmigrant status to that of L-1A status.


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• In the U.S. Gaining L-1A Status– USCIS will send back the arrival/departure

card to the alien stating the alien is now under L-1 status and permitted to work for U.S. employer for a fixed temporary period of time.

– Alien will need to travel outside the U.S. and obtain the L-1 Visa to enter and work in U.S.


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• At the U.S. Consulate– Generally: USCIS will send notice of approval

of the U.S. based employer’s petition to the U.S. Consulate where the alien will be applying for the L-1 Visa.

Gaining an L-1 Visa at U.S. Consulate

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• Process at the U.S. Consulate– Alien employee will approach U.S. Consul.

– Its useful for alien employee to have a copy of the petition request and supporting documentation that was originally sent.

– If asked any questions by U.S. Consul regarding alien’s qualifications for job offered, the alien may submit appropriate evidence and documentation that was the basis for the approval from USCIS.


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• Process at the U.S. Consulate– U.S. Consul will grant the L-1 visa and stamp

visa in the alien employee’s passport.

– Visa will usually be valid and authorized for a period of stay ending on date corresponding to length of time indicated on the notice of approval.

– Visa will state that alien may make multiple entries into U.S., or may reenter U.S. any number of times.


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• Family Members at the U.S. Consulate

– Family Members: Spouse or unmarried minor children under 21 may obtain L-2 visas to enter and stay with alien employee in U.S.

– Unmarried minor children can’t work in U.S. but can study in U.S. until period of authorized stay expire.


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• Alien Spouse Employment Authorization

– Alien Spouses: once entered the U.S. may apply for Employment Authorization and will receive an Employment Authorization card.

– With this card the spouse will obtain a social security number.


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Entry at U.S. Border

• Inspection:– Generally: At U.S. border or port of entry, the

alien employee with L-1 visa stamped in their passports will be inspected by U.S. immigration officials or inspectors.

– L-1 visa will allow alien to make entry into U.S..

– The alien employee will emphasize they only intend to work for U.S. based employer for a fixed temporary period of time.

– The U.S. immigration inspector will stamp the date of entry into the alien’s passport.

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• Inspection: Canadians– Canadian nationals can apply at the U.S. port

of entry without the need for USCIS approval of U.S. Employer’s petition request.

– Canadian employee transferee will have with them the U.S. based employer’s petition and supporting documentation to answer any questions from U.S. immigration inspector in order to obtain approval to enter the U.S. under L-1 status and work for U.S. based employer.

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• Inspection: Canadians

– If the U.S. immigration inspector approves the U.S. based employer’s request, the alien employee will be given L-1 status and permitted to enter the U.S. and work as an intra-company transferee.

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• Arrival/Departure Record Card

• U.S. immigration inspector has given approval to enter U.S. under the L-1 status.

• Will hand over arrival/departure record called the Form I-94 card to the alien employee.

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• Arrival/Departure Record Card

• Form I-94 card will indicate the entry of the alien employee into the U.S. under L-1 status, the date of arrival, and date of departure.

• Thus indicating the time period the alien employee may stay in U.S. and work under L-1 status.

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In the U.S.

• Stay Period

– Generally: Alien intra-company transferee employee may initially be given permission to stay and work for U.S. based employer for a temporary fixed period of two years.

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In the U.S.

• Stay Period

– New Office: Alien entering the U.S. to set up a new office may only obtain an initial one year period of stay.

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In the U.S.

• Extensions of Stay: Generally

– Generally, the U.S. based employer may request extensions of stay up to additional two year period. No extensions beyond seventh year will be permitted.

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In the U.S.• End of Term of Stay

– Please note, alien who has completed their seven year stay in U.S. may not leave U.S. and reenter within a few months under another nonimmigrant working visa, such as the H-1B working visa.

– If alien intra-company transferee leaves U.S., stays in foreign country for one full year and then reapplies to enter U.S. under another nonimmigrant visa such as H-1B visa, the alien will be permitted to do so.

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• Extensions of Stay– New Office: U.S. based employer may

request an extension of stay after the first year of operations.

– Existing Office: Extensions may be requested for Existing Operations.

– Before USCIS will give approval, the U.S. based employer must demonstrate that the U.S. based operations have expanded.

– Must demonstrate they have grown to the extent to support the hiring of executive, managerial, or specialized knowledge personnel.

In the U.S.

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• Extensions of Stay

– USCIS may want evidence from U.S. based employer of actual staffing levels of U.S. based operations, number of employees and positions held by the actual employees.

In the U.S.

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• Extensions of Stay: USCIS Policies vs. Economic Reality– According to present policies and

interpretations by USCIS, for U.S. based operation to continue the hiring of executive, managerial, and specialized knowledge personnel, U.S. based operation would have to be medium sized operation.

– The executive would be supervising two, three or four higher level managers and all managers would be supervising other employees

In the U.S.

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• Extensions of Stay: USCIS Policies vs. Economic Reality

– In addition, the revenue and payroll dollars allow the payment for the alien employee and other executives and managers

In the U.S.

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• Extensions of Stay: USCIS Policies vs. Economic Reality– U.S. based employer may request an

extension of stay. Before USCIS will give approval, the U.S. based employer must demonstrate that the U.S. based operations have expanded and grown to extent to support the hiring of executive, managerial, or specialized knowledge personnel. USCIS may want evidence from U.S. based employer of actual staffing levels of U.S. based operations, number of employees and positions held by the actual employees.

In the U.S.

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• Extensions of Stay: USCIS Policies vs. Economic Reality– According to present policies and

interpretations by USCIS, for U.S. based operation to continue the hiring of executive, managerial, and specialized knowledge personnel, U.S. based operation would have to be medium sized operation. The executive would be supervising two, three or four higher level managers and all managers would be supervising other employees

– In addition, the revenue and payroll dollars allow the payment for the alien employee and other executives and managers

In the U.S.

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New L-1 Status or New L-1 Visa at U.S. Consulate

• Generally

• U.S. based employer before the end of the first initial period of stay will apply for extension of stay and at this time the alien employee’s L-1 visa will probably terminate.

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• Petition Approval Sent to U.S. Consulate

• Once USCIS approval has been given for an Extension, the alien employee may send a request for new visa and the intra company transferee will have to apply for a new L-1 visa at the U.S. Consulate.

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• New L-1 Status Extension

• Alternative approach would be for U.S. employer to file a request for the employee extension of stay in U.S. at the same time the U.S. based employer asks for an extension.

• USCIS will indicate the approval and length of extended stay on alien’s I-94 card which is part of the Notice of Approval.

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• New L-1 Status Extension

• USCIS will indicate the approval and length of extended stay on alien’s I-94 card which is part of the Notice of Approval.

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• However, once the alien employee who has an extension granted on the I-94 card leaves the U.S.

• Alien employee will have to go to a U.S. Consul and have a new L-1 visa stamped in their passport.

• They may then reenter the U.S. and continue working for the U.S. based employer under L-1 status.

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Conclusion

• Seeking Permanent Residency

• Alien employee subsequent to entry, possibly after the first year, may decide they’d like to be hired permanently without time limitations by the U.S. based employer and work in the U.S. as a permanent resident.

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Conclusion


• The same U.S. based employer may start process of seeking approval to hire the alien intra-company transferee employee as a permanent immigrant employee.

• Alien may continue to work as nonimmigrant L-1 intra-company transferee for U.S. based employer while this procedure to obtain permanent residency is proceeding.

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Conclusion


• Alien employee has entered the U.S. in a managerial or executive capacity, U.S. based employer may avoid the lengthy procedure of dealing with the Department of Labor PERM Process, which requires advertising the position to obtain labor certification.

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VISAS FOR INTRA-COMPANY TRANSFEREE EMPLOYEES (L-1A … · VISAS FOR INTRA-COMPANY TRANSFEREE...

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