October was another busy month at the Peace Bridge for the attorneys at Berardi Immigration Law. We presented numerous TN and L-1 petitions with our clients to facilitate the adjudication process. All were approved with well-crafted petitions and thorough legal analysis.
The L-1 category is useful for multinational companies that wish to transfer managers, executives and specialized knowledge employees to serve in similar positions at a qualifying organization in the U.S.
Proving Qualifying Employment for L-1 Purposes When the Executive Is Not on Regular Payroll
The L-1 category requires evidence that the beneficiary has at least one continuous year of full-time employment abroad with a qualifying organization. This employment must have occurred within the three years before his or her application for admission to the United States. There is no specific minimum salary requirement for the L-1 intracompany transferee. However, a salary that implies or suggests a position with executive or managerial capacity can be helpful, though not necessary, to establish eligibility.
For our Canadian clients, we typically present the applicant’s most recent T-4 annual wage statement along with two recent pay stubs to show ongoing and qualifying employment abroad. A recent client, however, was an executive of a Canadian company and paid himself through payroll and by taking management draws. The low figure reported on his T-4 statement did not reflect a strong indication of his executive position, so we included a letter from his accountant confirming his draw of management fees, along with a financial breakdown of the figures. We also included the applicant’s T-1 Income Tax and Benefit Return Statement. Together, this evidence was sufficient for proving the applicant’s qualifying employment and executive position within the company.
The Effect of Corporate Changes on L-1 Petitions: Successor-in-Interest
The L-1 category is commonly affected by corporate mergers and acquisitions. If a merger or acquisition of a company alters the organizational structure so that there is no longer a qualifying corporate relationship between the U.S. employer and the foreign entity, L-1 employees in the United States may lose their eligibility. (However, the foreign entity that actually employed the L-1 transferee does not have to remain in existence so long as there is another foreign entity that has a qualifying relationship with the U.S. employer.) If the merger or acquisition does not destroy the qualifying relationship, then the employer must only notify the government of the change in the organizational structure at the time of filing the L-1 extension petition.
One of our corporate U.S. clients was acquired by another U.S. company several months ago. We analyzed the effect of the acquisition on the foreign nationals in H-1B, TN and L-1 status and advised the company of next steps accordingly. One of the Canadian employees holding L-1 status was due for an extension. In preparing the petition to present to CBP, we explained that the new corporation had acquired both the U.S. and foreign operations of the beneficiary’s former employer. Therefore, a qualifying relationship continued to exist for L-1 purposes, and the beneficiary was eligible for an extension. To simply this explanation for the government, we included a new corporate organizational chart, as well as proof of the acquisition. Our client was quickly approved L-1 status for an additional three-year period.
If you or your company is interested in the L-1 category for intra-company transferees, please contact us today to schedule a consultation with one of our knowledgeable attorneys.