The L-1 “Doing Business” Requirement

The L-1 (“intracompany transferee”) classification is utilized by employers to transfer executives, managers, and specialized knowledge employees to the United States from abroad. To qualify, there are requirements that must be satisfied by both the petitioning U.S. employer and foreign employee.

Employer requirements include: 

1. Must have a qualifying relationship with a foreign company; and
2. Must currently be, or will be, doing business as an employer in the United States and in at least one other country directly or through a qualifying organization for the duration of the beneficiary’s stay in the U.S.  

Employee requirements include:

1. Must have been working in an executive, managerial, or specialized knowledge position for a qualifying organization abroad for one continuous year within the three years immediately preceding admission to the U.S.; and 
2. Must be seeking to enter the U.S. to provide services in an executive, managerial, or specialized knowledge position.

What Constitutes “Doing Business”?

According to the regulations, “doing business” is defined as:

[T]he regular, systematic, and continuous provision of goods and/or services by a qualifying organization and does not include the mere presence of an agent or office of the qualifying organization in the United States and abroad.

Typically, the U.S. company and the foreign company must be “doing business” for at least one full year before applying on behalf of an employee. If, however, the U.S. entity has been operating for under one year, it may file a “new office” petition. New office petitions provide foreign employers with an opportunity to send an employee to the U.S. to establish a new office.  

Evidence of “Doing Business”

To meet the doing business requirements, a petitioner is required to provide detailed documentation demonstrating that the U.S. and foreign company both exist and that each is engaged in the “regular, systematic, and continuous provision of goods and/or services.” Typical evidence includes but is not limited to:

• Evidence that both entities were legally established, such as articles of incorporation, operating agreements, partnership agreements, etc.
• Evidence that both entities are providing goods and/or services, such as tax returns, audited financial statements, annual reports, background information from the company website, product brochures, client contracts, sales invoices, etc. 
• Evidence that both entities have physical office space, such as real estate documentation, lease agreements, utility bills, photographs, property tax documents, etc.
• Evidence that both entities have active employees, such as payroll records, tax records, etc. 

Conclusion

The L-1 category is utilized by multinational companies all over world to transfer key staff members to the United States and satisfying the “doing business” requirement is essential to obtaining L-1 approvals. If you are interested in applying for L-1 status on behalf of yourself or for one of your employees, please feel free to contact me via LinkedIn or by email at [email protected].