L-1B Visa – Intracompany Transferee – Specialized Knowledge

The L-1B Visa is nonimmigrant classification enables a U.S. employer to transfer an employee with specialized knowledge relating to the organization’s interests from one of its affiliated foreign offices to one of its offices in the United States.  The L-1B Visa classification also enables a foreign company which does not yet have an affiliated U.S. office to send a specialized knowledge employee to the United States to help establish one (new office).  The employer must file Form I-129, Petition for a Nonimmigrant Worker with U.S. Citizenship and Immigration Services (USCIS) and include the requisite filing fees and supporting documentation demonstrating that the U.S. employer, affiliated foreign company and the foreign national employee meets all eligibility requirements for L-1B Visa classification.

General Qualifications of the Employer and Employee

A U.S. employer hiring a foreign national worker in L-1B Visa classification must:

• Have a qualifying relationship with a foreign company (parent company, branch, subsidiary, or affiliate, collectively referred to as qualifying organizations); and
• Currently be, or will be, doing business as an employer in the United States and in at least one other country directly or through a qualifying organization for the duration of the beneficiary’s stay in the United States as an L-1.  While the business must be viable, there is no requirement that it be engaged in international trade.

Doing business means the regular, systematic, and continuous provision of goods and/or services by a qualifying organization and does not include the mere presence of an agent or office of the qualifying organization in the United States and abroad.

To qualify for L-1B Visa classification, the foreign national worker must also:

• Generally have been working for a qualifying organization abroad for one continuous year within the three years immediately preceding his or her admission to the United States; and
• Be seeking to enter the United States to provide services in a specialized knowledge capacity to a branch of the same employer or one of its qualifying organizations.

Specialized knowledge means either special knowledge possessed by an individual of the petitioning organization’s product, service, research, equipment, techniques, management, or other interests and its application in international markets, or an advanced level of knowledge or expertise in the organization’s processes and procedures

L-1 Visa Reform Act of 2004

The L-1 Visa Reform Act of 2004 applies to all petitions filed on or after June 6, 2005, and is directed particularly to those filed on behalf of L-1B employees who will be stationed primarily at the worksite of an of an employer other than the petitioning employer or its affiliate, subsidiary, or parent.  In order for the employee to qualify for L-1B Visa classification in this situation, the petitioning employer must show that:

• The employee will not be principally controlled or supervised by such an unaffiliated employer; and
• The work being provided by the employee is not considered to be labor for hire by such an unaffiliated employer.

New Offices

A “New Office” is one that has been “doing business” for less than one year or that the foreign national will open in the United States

For foreign employers seeking to send an employee with specialized knowledge to the United States to be employed in a qualifying new office, the employer must show that:

• The employer has secured sufficient physical premises to house the new office ; and
• The employer has the financial ability to compensate the employee and begin doing business in the United States.

Period of Stay

Qualified employees entering the United States to establish a new office will be allowed a maximum initial stay of one year.  All other qualified employees will be allowed a maximum initial stay of three years.  For all L-1B Visa employees, requests for extension of stay may be granted in increments of up to an additional two years, until the employee has reached the maximum limit of five years.

Family of L-1B Workers

The transferring employee may be accompanied or followed by his or her spouse and unmarried children who are under 21 years of age.  The family members must also complete the DS-160 Nonimmigrant Visa Application online and appear for an interview at the U.S. Embassy.  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.

Spouses

After being admitted to the U.S. in L-2 status, spouses of L-1B workers may apply for work authorization by filing a Form I-765, Application for Employment Authorization with the USCIS  and the requisite filing fee and supporting documentation.  If approved, there is no specific restriction as to where the L-2 spouse may work.

Blanket Petitions

Certain organizations may establish the required intracompany relationship in advance of filing individual L-1 petitions by filing a blanket petition.  Eligibility for blanket L certification may be established if:

• The petitioner and each of the qualifying organizations are engaged in commercial trade or services;
• The petitioner has an office in the United States which has been doing business for one year or more;
• The petitioner has three or more domestic and foreign branches, subsidiaries, and affiliates; and
• The petitioner along with the other qualifying organizations, collectively, meet one of the following criteria:
• Have obtained at least 10 L-1 approvals during the previous 12-month period;
• Have U.S. subsidiaries or affiliates with combined annual sales of at least $25 million; or
• Have a U.S. work force of at least 1,000 employees.

In the past several years, adjudication of L-1B petitions by USCIS has become problematic.  According to USCIS records, the denial rate for L-1B “specialized knowledge” intra-company transferee petitions continues to increase. In fiscal year 2013, the denial rate was 34 percent; a 4 percentage point increase from fiscal year 2012. In fiscal year 2006 the denial rate was only 6 percent. USCIS Requests for Evidence (RFE) for the last two years have remained about the same, at about 45 percent.

Even with USCIS historically high rate of L-1B Visa denials, approvals are still possible.  However, doing so requires attention to detail, clear and precise job descriptions and supporting evidence demonstrating that the U.S. employer, foreign entity and foreign national worker meet all qualifications.  Most important, the employer must clearly articulate the specialized knowledge held by the foreign national worker and why the job in the U.S. cannot be filled by a U.S. worker.

The immigration attorneys at Allen & Pinnix have successfully represented companies in L-1B petitions for years.  If you are an employer seeking to transfer a foreign national worker from a qualifying entity abroad to a position in the U.S., we can help.  Schedule a consultation or call our office today at 919.755.0505.