The L-1B nonimmigrant visa classification allows a U.S. employer to transfer an employee from one of its affiliated foreign offices to one of its offices in the United States. The employee and the offered job must be professional, and the employee must possess specialized knowledge which relates to the organization’s interests This classification also allows a foreign company that does not yet have an affiliated U.S. office to send a specialized knowledge employee to the United States to help establish one.
The L-1B visa is referred to as an “Intra-company Transferee Specialized Knowledge” visa. L-1B visas are available for both small and large companies.
L-1B employees do not have to work at the company’s worksite, but there are additional rules for those who will be stationed primarily at the worksite of an employer other than the petitioning employer. In order for the employee to qualify for L-1B classification in this situation, the petitioning employer must show that:
- The employee will not be principally supervised or controlled by the unaffiliated employer
- The work being provided by the employee is not considered to be labor for hire by the unaffiliated employer
What Does “Specialized Knowledge” Mean?
L-1B visas are reserved for employees who possess “specialized knowledge.” This means either:
- Thorough knowledge of the organization’s product, service, research, equipment, techniques, management, or other interests, or
- An advanced level of knowledge or expertise in the organization’s procedures and processes
Examples of specialized knowledge:
- Special training, provided that the training sets the worker apart from other employees who have similar experience levels
- Information on patents that the company holds
- Published material in trade journals or other publications that indicate the employee’s specialized knowledge
- Information on how the employee’s work has enhanced the company (such as its productivity, financial well-being, or other area)
What Are Other Eligibility Requirements for L-1B Visas?
There are other requirements for both the employer and the employee to satisfy. The employer must satisfy the following requirements:
- The US and non-US employers must be related: parent company, subsidiary, branch, or an “affiliate” owned by the same people in approximately the same percentages
- The employer must be “doing business” in both the United States and the foreign country for the duration of the foreign employee’s stay in the United States. The business does not have to be international commerce. “Doing business” means the systematic and continuous provision of goods and/or services, and does not include the mere presence of an agent or office
The sponsored employee must also meet certain conditions, including:
- The sponsored employee must have been employed by the related company in the foreign country for one full year within the three-year time period before the time they wish to be admitted into the United States
Can an L-1B Visa Be Used to Set-up a New Office Branch in the U.S.?
Yes – L-1B visas may be used to establish a new office. The employer must provide evidence that it has already secured the physical location for the new office, and that the new U.S. office will be able to support a specialized employee.
How Long Does the Visa Last?
If the employee will be arriving to establish a new office, they will be given 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 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.
If the parties would like the employer to remain in the U.S. beyond the five-year limit, they must file for Change/Adjustment of Status before the stay period expires, and switch to a different visa type. The employer can also petition for a brand-new L-1B visa. Other types of non-immigrant work visas, such as the L-1A and H-1B visa, have a longer allowed period of stay, making them good options for some employees.
Can the Employee Bring Their Families?
The transferring employee may be accompanied or followed by their spouse and unmarried children who are under 21 years of age. As long as the correct paperwork is obtained, spouses of L-1B workers are authorized to work in the U.S., a benefit that is very rare under immigration law.
How Do You Obtain an L-1B Visa?
Application for an L-1 visa begins with the employer filing a petition with the U.S. Citizenship & Immigration Services (USCIS), along with supporting documentation showing that both the U.S. company and the foreign parent, subsidiary, affiliate or branch meet the qualifying factors described above, and evidence that both the employer and employee meet all other visa requirements.
Once approval is given, the employee takes it to the U.S. consulate or embassy nearest them. Applicants who are in the United States at the time of the filing for the visa can request a change of status from their present nonimmigrant status (i.e. visitor, student, etc.), so long as they are in status at the time they file for the L-1B visa.
May L-1B Visa Holders Apply for a Green Card?
The L-1B visa category is known as a “dual intent” visa. This means that although when you obtain the visa you must promise to leave the U.S. when your visa expires, you can also have the intention to try to live in the U.S. permanently, with a permanent residence visa (a “green card”).
When applying for the L-1B visa, the goal will be to convince the U.S. consulate or embassy that will issue the visa that you want to move permanently to the United States, but if that is not possible, you will abide by the terms of the L-1B visa and depart when the visa expires.
Because the L-1B is a work visa, the employer and employee may explore employment-based green cards available to workers holding L-1B status:
- E-B2 green card: This immigrant visa is available to candidates who demonstrate exceptional ability in their field or possess an advanced degree.
- E-B3 green card: This is available to professionals (minimum of bachelor’s degree), skilled workers (at least 2 years training or work experience) and unskilled workers (unskilled labor requiring less than 2 years training or work experience). This may be the more popular option among L-1B visa holders since they already have documentation of their specialized knowledge and can easily fall under the professionals or skilled workers category
What if the Worker Will Be Stationed at a Different Worksite?
In some cases, it is acceptable if the L-1B visa holder is not actually working directly at a worksite owned by the qualifying parent company. For example, they may be stationed at a location operated by an unaffiliated company. However, the parent company needs to demonstrate that:
- The L-1B visa employer won’t be supervised or controlled principally by the unaffiliated employer; and
- The work that is being performed by the employee will not be counted as “labor for hire” by the unaffiliated company.
Do I Need a Lawyer for Help with an L-1B Visa?
The laws concerning the L-1B visa process can fluctuate on a yearly basis. This can make it quite confusing to apply. It is a good idea for the employer and the employee to hire a local experienced immigration attorney for legal advice.
An experienced immigration attorney can make sure that both the employer and the employee meet all of the requirements to obtain an L-1B visa, and can prepare the necessary forms. L-1B visa petitions should include a thorough, detailed letter from the employer explaining to immigration officials the grounds for requesting the visa and how the employer and employee meet the visa’s requirements. The attorney can draft that important letter.
