L-1 Visa: Qualifying Relationship & Qualifying Employment Requirements
The L-1 nonimmigrant visa category is for intracompany transferees. It allows certain individuals who have one year of qualifying employment abroad in an executive, managerial, or specialized knowledge position to transfer to a related U.S. business entity with a qualifying relationship.
What is a “Qualifying Relationship”?
A qualifying relationship exists if the foreign entity is either a parent, branch, subsidiary, or affiliate of the U.S. petitioner. This visa category is meant to facilitate the movement of key personnel to ensure the smooth running and development of the company’s U.S. operations. We provide the definition of parent, branch, subsidiary, or affiliate for L-1 purposes below:
- A “parent” is defined as a firm, corporation, or other legal entity which owns and controls its subsidiaries.
- “Branch” means an operating division or office of the same organization housed in a different location.
- A “subsidiary” is a firm, corporation, or other legal entity of which a parent owns, directly or indirectly:
- (a) more than half of the entity and controls the entity;
- (b) half of the entity and controls the entity;
- (c) 50 percent of a 50/50 joint venture and has equal control and veto power over the entity; or
- (d) less than half of the entity, but in fact controls the entity.
- An “affiliate” refers to one of the following:
- (a) one of two subsidiaries, both of which are owned and controlled by the same parent or individual; or
- (b) one of two legal entities owned and controlled by the same group of individuals, with each individual owning and controlling approximately the same share or proportion of each entity.
What if the employee’s foreign employer stops operating after (or even before) the employee transfers to the U.S. operations?
According to U.S. regulations, an L-1 beneficiary must have at least one year of qualifying employment abroad within three years of applying for L-1 status. A qualifying foreign organization must also be doing business abroad for the duration of the L-1 beneficiary’s stay in the U.S. as an intracompany transferee. In other words, the company must still have related U.S. and foreign operations that are both doing business while the L-1 beneficiary is in the U.S. in L-1 status. Fortunately, the foreign qualifying entity operating abroad does not need to be the same one that employed the L-1 beneficiary while he/she was abroad.
Therefore, even if the L-1 beneficiary’s foreign employer ceases doing business or otherwise dissolves after they obtain their one-year of qualifying employment, the L-1 beneficiary may still obtain and maintain their L-1 status in the U.S. as long as the company continues to have other foreign operations that are doing business outside the U.S. (Note: doing business for L-1 purposes refers to the regular, systematic, and continuous provision of goods and/or services.)
If you are interested in learning more about the L-1 visa category, feel free to reach out to our office to schedule a consultation with one of our experienced attorneys: 716-634-1010.
