Posted almost 9 years ago

L-1 Visa Guide for Entrepreneurs

You may be eligible for an L-1 visa for “intracompany transferees” if you are an executive, manager, or a worker with specialized knowledge who has worked abroad for a qualifying organization (including an affiliate, parent, subsidiary or branch of your foreign employer) for at least one year within the 3 years preceding the filing of your L-1 petition (or in some cases your admission to the United States). The organization must seek to transfer you to the United States to work in one of the capacities listed above.

Are you a manager,executive,or a “specialized knowledge” employed by a foreign business entity?
Have you been working abroad for at least one continuous year within the past 3 years?
Is you company abroad related to the U.S. business you will establish? Will the foreign entity continue to do business?
Will you be coming to the United States to open a new office location for your company? Will the new office be active and operating shortly after you arrive in the United States as an L-1?

Requirement 1 – The petitioning U.S. entity must have a qualifying relationship with your entity abroad.

The new U.S. office must have a corporate relationship with your foreign entity abroad where you have been employed as a manager, executive, or worker with specialized knowledge. This means that the new U.S. office must be a parent, affiliate, subsidiary or branch of the foreign entity, and that both the U.S. office and the foreign entity must continue to share common ownership and control.

The Company

The foreign employer of the L-1 employee and the U.S. employer must be related to each other in a particular manner (as affiliates or in a parent-subsidiary relationship). Simply having a contractual relationship between two companies is not sufficient. The basic rule is that one of the transfer companies must have “effective control” over the other, or both must be “effectively controlled” by the same third party. The acceptable corporate relationships between the U.S. employer and the employer abroad are:

The U.S. and foreign companies are both branch offices of the same corporation.
The U.S. company owns more than 50% of the overseas company or vice versa.
The U.S. and foreign companies are both majority-owned (>50%) by the same third party.
- USCIS requires that the same group of shareholders in the third party must own a controlling interest in each business, and each must hold approximately the same proportion within the group. The shareholders of each individual transfer company, however, do not have to be identical for L-1 affiliation to occur.
The U.S. company is a joint venture (50% owned by each of two companies) or is one of the joint venturers (50% owner) of the foreign company.
- Transfers are not permitted from one joint ventrurer to the other, because these companies would not have ownership interest in each other.

How do I demonstrate that my new business in the United States has a qualifying relationship with a foreign company?

Some of the evidence you may submit to show that your new U.S. business has the requisite corporate relationship to your overseas employer includes:

Articles of incorporation showing common ownership of the U.S. and foreign entities
Business licenses or other documents showing common ownership of the U.S. entity
Annual reports describing the corporate structure
Contracts or other documents detailing the affiliate relationship
Corporate filings in the United States or abroad describing the corporate relationship
Any other evidence demonstrating ownership and control over the U.S. and foreign entities (i.e., stock purchase agreements, voting rights agreements, capitalization table, term sheet)

1.) If you are filing as an affiliate, provide a detailed list of the owners of the foreign and U.S. companies, including the percentage of ownership, along with supporting documentation.

An affiliate is defined as one of two subsidiaries owned and controlled by the same parent or individual, or the same group of individuals, each owning and controlling the same share or proportion of each entity.

2.) If you are filing as a subsidiary, provide a detailed list of the owners of the foreign and U.S. companies, including the percentage of ownership, along with supporting documentation.

A subsidiary is an entity of which a parent:

Owns, directly or indirectly, more than half the entity and controls the entity, or
Owns, directly or indirectly, half the entity and controls the entity, or
Owns, directly or indirectly, 50 percent of a 50-50 joint venture and has equal control and veto power over the entity, or
Owns, directly or indirectly, less than half of the entity, but in fact controls the entity

3.) If you are purchasing an existing business, provide a copy of your stock purchase agreement and/or any other relevant documentation.

How do I demonstrate that I have worked the required amount of time abroad?

Some of the evidence you may submit to document your overseas employment for 1 out of the last 3 years includes:

Pay stubs
Payroll records
Tax returns that show employment
Evidence of work product

How do I show that my overseas employment was in a qualifying capacity?

Some of the evidence you may submit to demonstrate that your overseas employment was in a managerial, executive or specialized knowledge capacity includes:

Organization charts showing your position
Patents or other evidence of the company’s technology, products or services that are based on your work
Performance reviews
Loans/financing on behalf of the company
Organizational job descriptions for your position and those positions that reported above and/or below you, if applicable
Resume describing your job accomplishments

There is no requirement that an employee’s specialized knowledge be “unique” or “proprietary” in nature. Further, although there is no U.S. labor market test required before a person may be admitted as an L-1 specialized knowledge employee, your knowledge must be “special” or of an “advanced” level.

Requirement 2 – Sufficient physical space must be secured for a new office.

While the amount of physical space may vary depending on the nature of the business, an appropriate space must be secured through lease, purchase or other means.

How do I prove that the new U.S. office has sufficient space to do business?

When filing for the purpose of opening a new office in the United States, some of the evidence you may submit to demonstrate sufficient physical space for the new U.S. office to do business includes:

Signed lease agreement
Mortgages or other proof of real estate purchase
Business plan, marketing materials, or other descriptions of the business connecting the activity of the business with the space acquired

1.) If you have secured office space through means other than a lease or purchase (e.g., through an incubator), you will need to specifically explain the type of space you have secured and provide additional evidence to establish your eligibility (e.g. an agreement or other documentary evidence from the incubator confirming your new office will be operating from the incubator space).

2.) If you are filing for a new office, provide a copy of a business plan or executive summary that shows the size of the U.S. investment and your ability to commence doing business in the United States.

3.) In addition to evidence showing you have secured a physical premise, explain how this location is sufficient for your business.

Requirement 3 – A new office must be active and operating within one year after the L-1’s admission to the United States if requesting an extension of stay.

The “new office” L-1 visa is meant to facilitate a “ramp up” period for a new U.S. office of a foreign entity. This period is limited to one year. After that time, an extension of the L-1 visa is available if the new office meets this requirement. What makes an office active and operating will differ depending on the nature of the business. Typically it will involve factors such as hiring additional employees, fulfillment of contract orders, having a revenue stream, or holding inventory, if applicable

Requirement 4 – After 1 year the new office must support a managerial or executive position if you are requesting an extension of stay in the L-1A classification.

While a new office may be opened on an L-1 visa by someone working within your organization in a managerial, executive or specialized-knowledge capacity, after one year the office must be sufficiently active to support a manager or executive. During the first year ramp up, a manager or executive may be required, as a practical matter, to engage in many “hands-on” tasks that go beyond inherently managerial or executive tasks. After the first year, however, the manager or executive will be required to focus primarily on managerial or executive tasks in order to obtain an extension of the L-1 visa.

After one year, how do I demonstrate that the new office is fully functioning and that it will support my role as a manger or executive?

Some of the evidence you may submit to demonstrate that the new office is fully functioning includes:

Purchase orders, contracts or other evidence of commercial activity
Payroll records for employees hired
Bank statements
Financial reporting documents showing monthly income
Continued venture capital or other third party investment contribution based on achieved milestones
Media coverage of the business
Position descriptions providing the roles and responsibilities of all current employees, or other evidence which clearly demonstrates how the manager or executive is relieved of non-qualifying duties