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| L-1A Visa For Executives and Managers from Abroad By Atty. German Castillo |
In past articles, it has been discussed how nationals of certain countries like Taiwan, the Philippines, and Pakistan
can invest in the United States a mere “substantial” amount, like $55,000, in a real operation and thereby likely
qualify for an Investor (E-2) Visa. However, the E-2 business visa is not much help for people who are nationals of
countries that do not have a reciprocal investment treaty with the United States. For example, India and China do not
have such investor treaties with the United States, and therefore nationals from India and China do not qualify for E-2
visas.
However, a common solution for businessmen that do not qualify for E-2 visas, because of their country of
nationality or because of other reasons, lies in the Intracompany Transferee Visa, known as L-1. Specifically, if a
businessman has worked as a “manager” or “executive” for at least one year before entry into the United States, that
businessman might consider the option of an L-1A visa. (The subject of L-1B visas, for “specialized knowledge”
employees, will be considered in a separate article.)
The reason for the overlap between L-1A intracompany transferee executives and managers, on the one hand, and E-
2 investors, on the other, is because most businessmen who would invest in the United States are seasoned
businessmen who have in their home countries operated, owned, or been part of their own businesses or businesses
belonging to their families.
It should never be inferred that “manager” or “executive” classification is reserved for only the employees of fortune
500 companies or international companies with thousands of employees. While executives or managers within such
large companies are likely to have an easier time of proving their role, the immigration regulations, particularly after
the Immigration Act of 1990, specifically allow the smaller organizations equal opportunities for transferring key
executives and managers from abroad into the U.S.
As such, it will be the purpose of this short article to summarize the basic elements of the L-1A Intracompany
Transferee visa.
First, as the name would imply, the L-1A visa involves an “intra-company” transfer from a foreign entity to a
connected U.S. entity. In other words, L-1A involves the existence of two entities, one in the U.S. and the other
abroad—any where in the world.
Second, the necessary international connection revolves around the “common ownership and control” of the two
entities. For example, if the U.S. entity and the foreign entity are both branch offices of the same company, then
those branch offices qualify for an intracompany L-1A transfer of their executive or manager. Likewise, if the U.S.
entity owns 51% of the foreign entity, or vice versa, then again those entities qualify for making an intracompany
transfer of their executive or manager into the United States.
Third, the two entities must be currently providing goods or services on a regular, systematic, and continuous basis—
i.e., they must both be “doing business.” This requirement is generally aimed at preventing owners of small foreign
businesses from transferring themselves into the United States, unless their foreign business is sufficiently beyond
a one-man-operation that it will conduct continuous business even with the owner transferred into the United States.
However, business operations for the U.S. (unlike the foreign) fall into two distinct categories. If the U.S. business
operations are not yet in existence for a full year, but, rather merely set to start-up with the assistance of the
executive or manager, then such operations qualify for L-1A, albeit they will be granted only for a one year period.
Before the end of the granted one-year start-up period, the L-1A executive/manager will have to seek extension of L-
1A status by demonstrating that the operations have grown to the point they justify the executive/managerial
position, particularly from the point of view of staffing structure.
If the U.S. business operations have already been in continuous operation for at least a year, then L-1A status can be
granted for an initial period of up to three years.
The fourth major element of an intracompany transferee case is perhaps the most important. Namely, the
businessman to be transferred must have been an executive or manager with the foreign entity and must be
intended to be an executive or manager with the U.S. entity. Theoretically the definition of executive or manager is
given in close detail by the immigration regulations and guidance memorandum. However, in practice meeting the
definition is a gray area very much open to the discretion of the Immigration Services on a case-by-case basis. The
legal practitioner’s past experience with specific fact patterns is the best basis for assessing the likely acceptance of
a businessman’s classification as an “executive” or “manager.”
Yet, it can at least be emphasized that the terms “executive” and “manager” do not necessarily require that the
person seeking L-1A status oversee large staffs of people. Technically, an executive or manager can oversee a
function within the organization and that function may not necessarily be heavily staffed. Indeed, the regulations
provide that if staffing levels are to be considered by the Service in determining executive or managerial capacity, the
Service must consider the staffing levels in relation to the reasonable needs of the business and its overall stage of
development. Therefore, a new company in existence for only two or three years will likely need less employees to
operate than would a company that has been in existence fifty (50) years and expanded to encompass large
operations. Accordingly, the new company’s executives or managers would not be expected to oversee large staffs.
Finally, the fifth major element of an L-1A visa is that the businessman’s employment abroad as an executive or
manager must have generally occurred for one continuous year during the three-year period ending on the date of
initial L-1A application. This requirement is basically aimed at ensuring that the L-1A visa is generally used to
transfer those executives or managers who are still abroad or only in the U.S. for less than two years. Thus, the
requirement generally places an onus on would be L-1A executives or managers who are already in the United States
to make application for L-1A sooner rather than later.
However, for those businessmen who have been in the United States more than two years, it may still be possible to
make an initial L-1A application. The analysis in these situations is very fact specific and best addressed in a more
advanced article or by consultation with appropriate legal counsel.
Thus, it can be seen that for those businessmen who have worked abroad for at least a year in an executive or
managerial position, it is very likely possible for them to qualify for L-1A status if they are coming to set-up a branch
office or affiliate for the foreign employer or if they are coming to work with an existing branch office or affiliate.
Before concluding this article, it is worth pointing out some advantages and disadvantages as compared to the E-2
Investor visa. On the positive side, the L-1A visa does not require the executive or manager to take personal risk over
an investment in the $50,000 or greater range—it is sufficient that the U.S. entity exists and is operating or set to
operate within a year.
On the negative side, the L-1A visa is limited to seven years, where as the E-2 visa can be extended indefinitely. But
even this limitation is not a major concern because the L-1A visa operations will likely support an employment based
petition for permanent residency once the U.S. L-1A operations have been there for more than one year. The
counterpart employment based petition for permanent residency is called a Multinational Executive Transferee
petition (EB-1) and has first preference for available permanent residency visas. For EB-1-, no labor certification is
required and the wait for visa numbers is minimal or none existent.
In short, the L-1A visa is an excellent opportunity for those who do not qualify for E-2 because of their country of
nationality. Anyone who has worked abroad for others, themselves, or their family’s business as an executive or
manager should consider the possibilities the Intra Company Transferee L-1A visa can afford.
German Castillo
Attorney
can invest in the United States a mere “substantial” amount, like $55,000, in a real operation and thereby likely
qualify for an Investor (E-2) Visa. However, the E-2 business visa is not much help for people who are nationals of
countries that do not have a reciprocal investment treaty with the United States. For example, India and China do not
have such investor treaties with the United States, and therefore nationals from India and China do not qualify for E-2
visas.
However, a common solution for businessmen that do not qualify for E-2 visas, because of their country of
nationality or because of other reasons, lies in the Intracompany Transferee Visa, known as L-1. Specifically, if a
businessman has worked as a “manager” or “executive” for at least one year before entry into the United States, that
businessman might consider the option of an L-1A visa. (The subject of L-1B visas, for “specialized knowledge”
employees, will be considered in a separate article.)
The reason for the overlap between L-1A intracompany transferee executives and managers, on the one hand, and E-
2 investors, on the other, is because most businessmen who would invest in the United States are seasoned
businessmen who have in their home countries operated, owned, or been part of their own businesses or businesses
belonging to their families.
It should never be inferred that “manager” or “executive” classification is reserved for only the employees of fortune
500 companies or international companies with thousands of employees. While executives or managers within such
large companies are likely to have an easier time of proving their role, the immigration regulations, particularly after
the Immigration Act of 1990, specifically allow the smaller organizations equal opportunities for transferring key
executives and managers from abroad into the U.S.
As such, it will be the purpose of this short article to summarize the basic elements of the L-1A Intracompany
Transferee visa.
First, as the name would imply, the L-1A visa involves an “intra-company” transfer from a foreign entity to a
connected U.S. entity. In other words, L-1A involves the existence of two entities, one in the U.S. and the other
abroad—any where in the world.
Second, the necessary international connection revolves around the “common ownership and control” of the two
entities. For example, if the U.S. entity and the foreign entity are both branch offices of the same company, then
those branch offices qualify for an intracompany L-1A transfer of their executive or manager. Likewise, if the U.S.
entity owns 51% of the foreign entity, or vice versa, then again those entities qualify for making an intracompany
transfer of their executive or manager into the United States.
Third, the two entities must be currently providing goods or services on a regular, systematic, and continuous basis—
i.e., they must both be “doing business.” This requirement is generally aimed at preventing owners of small foreign
businesses from transferring themselves into the United States, unless their foreign business is sufficiently beyond
a one-man-operation that it will conduct continuous business even with the owner transferred into the United States.
However, business operations for the U.S. (unlike the foreign) fall into two distinct categories. If the U.S. business
operations are not yet in existence for a full year, but, rather merely set to start-up with the assistance of the
executive or manager, then such operations qualify for L-1A, albeit they will be granted only for a one year period.
Before the end of the granted one-year start-up period, the L-1A executive/manager will have to seek extension of L-
1A status by demonstrating that the operations have grown to the point they justify the executive/managerial
position, particularly from the point of view of staffing structure.
If the U.S. business operations have already been in continuous operation for at least a year, then L-1A status can be
granted for an initial period of up to three years.
The fourth major element of an intracompany transferee case is perhaps the most important. Namely, the
businessman to be transferred must have been an executive or manager with the foreign entity and must be
intended to be an executive or manager with the U.S. entity. Theoretically the definition of executive or manager is
given in close detail by the immigration regulations and guidance memorandum. However, in practice meeting the
definition is a gray area very much open to the discretion of the Immigration Services on a case-by-case basis. The
legal practitioner’s past experience with specific fact patterns is the best basis for assessing the likely acceptance of
a businessman’s classification as an “executive” or “manager.”
Yet, it can at least be emphasized that the terms “executive” and “manager” do not necessarily require that the
person seeking L-1A status oversee large staffs of people. Technically, an executive or manager can oversee a
function within the organization and that function may not necessarily be heavily staffed. Indeed, the regulations
provide that if staffing levels are to be considered by the Service in determining executive or managerial capacity, the
Service must consider the staffing levels in relation to the reasonable needs of the business and its overall stage of
development. Therefore, a new company in existence for only two or three years will likely need less employees to
operate than would a company that has been in existence fifty (50) years and expanded to encompass large
operations. Accordingly, the new company’s executives or managers would not be expected to oversee large staffs.
Finally, the fifth major element of an L-1A visa is that the businessman’s employment abroad as an executive or
manager must have generally occurred for one continuous year during the three-year period ending on the date of
initial L-1A application. This requirement is basically aimed at ensuring that the L-1A visa is generally used to
transfer those executives or managers who are still abroad or only in the U.S. for less than two years. Thus, the
requirement generally places an onus on would be L-1A executives or managers who are already in the United States
to make application for L-1A sooner rather than later.
However, for those businessmen who have been in the United States more than two years, it may still be possible to
make an initial L-1A application. The analysis in these situations is very fact specific and best addressed in a more
advanced article or by consultation with appropriate legal counsel.
Thus, it can be seen that for those businessmen who have worked abroad for at least a year in an executive or
managerial position, it is very likely possible for them to qualify for L-1A status if they are coming to set-up a branch
office or affiliate for the foreign employer or if they are coming to work with an existing branch office or affiliate.
Before concluding this article, it is worth pointing out some advantages and disadvantages as compared to the E-2
Investor visa. On the positive side, the L-1A visa does not require the executive or manager to take personal risk over
an investment in the $50,000 or greater range—it is sufficient that the U.S. entity exists and is operating or set to
operate within a year.
On the negative side, the L-1A visa is limited to seven years, where as the E-2 visa can be extended indefinitely. But
even this limitation is not a major concern because the L-1A visa operations will likely support an employment based
petition for permanent residency once the U.S. L-1A operations have been there for more than one year. The
counterpart employment based petition for permanent residency is called a Multinational Executive Transferee
petition (EB-1) and has first preference for available permanent residency visas. For EB-1-, no labor certification is
required and the wait for visa numbers is minimal or none existent.
In short, the L-1A visa is an excellent opportunity for those who do not qualify for E-2 because of their country of
nationality. Anyone who has worked abroad for others, themselves, or their family’s business as an executive or
manager should consider the possibilities the Intra Company Transferee L-1A visa can afford.
German Castillo
Attorney
To schedule a consultation, please call
tel. (281) 980-1385 or (281) 340-2027.
tel. (281) 980-1385 or (281) 340-2027.
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GERMAN CASTILLO LAW OFFICE, P.C.
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