The L-1 Foreign Employment Requirement
The L-1 category for intracompany transferees is available to individuals who have worked on a full-time basis for at least one year in the three years preceding the petition for a foreign corporation with a parent, subsidiary, branch or affiliate in the U.S.
Foreign Employment Requirements
- Qualifying Capacity
The applicant must qualify in a capacity that is managerial, executive, or one involving specialized knowledge.
A Manager is defined as an individual that manages the entire company or one of its core functions, personally supervises and controls the work of other supervisors or managers, has the ability to hire and fire, and exercises discretion over day to day functions of the business.
An Executive is defined as an individual that directs the management of the organization or one of its core functions; establishes goals and policies, exercises discretionary decision making; and receives only general supervision or direction from higher level executives, board of directors or stock holders.
An individual has Specialized Knowledge when that person possesses an advanced level of knowledge of the company and its products or an advanced level of professional or technical expertise and proprietary knowledge that is essential to the company’s successful operations.
- Qualifying Foreign Entity and Relationship to U.S. Petitioner
The L-1 applicant must be seeking entry to work for an entity in the U.S. that is the parent, branch, affiliate, or subsidiary of a foreign company. This is typically demonstrated by a corporate organizational chart and documents proving common ownership, such as stock certificates and share ledgers. Both entities must be actively engaged in providing goods or services in the U.S. with employees in the U.S. and abroad. The mere presence of an agent or office is insufficient evidence of this requirement.
An employer-employee relationship must exist between the employer and the foreign national applicant, with the employer having the right to terminate the employee and control the terms of his employment. In general, those engaged in independent contractor relationships are not eligible for L-1 status unless an exclusive engagement and 100% control over the applicant can be shown by the foreign employer.
Notably for the L-1 category, the U.S. government takes the position that a company is a separate legal entity from its owners and/or shareholders, and it may employ and petition for them. Therefore, an employer-employee relationship may exist even if the foreign national applicant is the majority, substantial, or even sole shareholder in the employing company.
Note that the foreign employer does not necessarily have to be in the same location as the L-1 applicant. For instance, a foreign applicant who has been employed abroad and situated outside the U.S. may still be eligible for L-1 status, even if he has been employed and paid by the U.S. petitioning company. These applications, however, still require a showing that the U.S. petitioner has a viable foreign office elsewhere.
- Qualifying Past Employment
The applicant must have been employed abroad continuously for one (1) year in the previous past three (3) years in a qualifying capacity. Full-time employment is required. A foreign national cannot aggregate part-time employment to meet the one-year requirement, but may divide full time services among affiliated foreign companies.
Time spent working in the U.S. in any status may not count towards the one year of continuous employment, but it does not interrupt the continuous employment. Therefore, if a foreign national has been employed with a company for exactly one year, and he has spent thirty days in the U.S. during his employment, he must remain employed abroad for an additional thirty days before he is eligible to apply for L-1 status.
There are no wage requirements to be eligible for L-1 status and the market does not need to be tested for U.S. workers available to fill the position.
Evidence of Foreign Employment typically includes an annual wage statement, such as a T-4 for employees in Canada, one full year of paystubs, corporate payroll records, or a letter from a Human Resources official stating the terms of the foreign national’s employment, including date of hire, position title, and salary.
Contract Berardi Immigration Law to Prepare Your L-1 Petition
Berardi Immigration Law regularly prepares successful L-1 applications. If you believe you may qualify to work in the U.S. as an intracompany transferee, please call or email our office today to schedule a consultation with one of our attorneys.