December 7

USCIS Clarifies Policy For L-1 Visa Holders

The USCIS has recently clarified that L-1 employees must meet the one-year foreign work requirement to be eligible for consideration.

To qualify for an L-1A or L-1B visa, an employee must have a sponsoring employer and have a working experience with the company for one continuous twelve-month period within the previous 36 months. Any time spent working in the United States during this time will not count towards the twelve-month condition.

Applicants who are already working in the U.S. for the L-1 sponsoring company on a different visa can still meet the one-year foreign employment requirement. In this case, applicants must demonstrate that they were employed with the company within three years ‘prior to entry’ as opposed to ‘prior to filing.’

If the applicant takes any brief trips to the United States for business or pleasure, it will be added to the twelve-month employment abroad requirement.

When evaluating the sponsoring employer, the USCIS takes into consideration such factors as the size of the company, the number of employees and the revenue level. Unless the L-1 employer is already well-known, it is often vital to provide extensive documentation to prove that the conditions are met.

Additionally, a qualifying relationship must exist between the sponsoring organization and a foreign company. A company can qualify as an L-1 sponsor if it is a parent company, subsidiary, branch or affiliate. The company must actively and continually provide goods or services in the United States and in at least one foreign country.  Merely having an office does not qualify.

The length of time for obtaining an L-1 visa type is mainly defined by how difficult it is to supply the required documentation.

The L-1A visa grants a maximum stay of up to 7 years and the L-1B visa grants a maximum stay of 5 years. If the employee has previously worked in the United States under an H visa type, this time may be deducted from the allowed stay.

Owners of companies can also meet the requirements for an L-1 visa. For this, they must establish an employee status. This can be achieved by creating a board of directors and drawing employment agreements. Such contracts must specify that the person is an employee who can be fired. This will only work if done correctly.

For example, a credible business plan can serve as -compelling evidence if it includes the following elements:

  • Description of the business products, services and objectives with sales, cost and income projections in addition to a complete market analysis.
  • Outline of the organizational structure, employee experience, job descriptions.
  • Timetable for hiring and staffing requirements.
  • Any contracts executed for the supply of materials or the distribution of products.
  • If applicable, a description of the manufacturing or production processes.

L-1 visas are not subject to quotas, and it is possible to switch to the H-1B later. However, it is not an ideal solution. Depending on the situation, a more appropriate route would be to go for an EB-1 or EB-3 green card.

About the author: Jon Velie has practiced Immigration law since 1993. He is CEO of OnlineVisas

Jon is an Amazon number one best-selling author of H-1B Visa: Application & Approval, is regularly covered by major media and has won a number of international awards. Jon was also pivotal in the Cherokee Freedmen Supreme Court case.

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