Texas L-1 Visa Lawyers
The L1 visa is a nonimmigrant visa which allows foreign nationals being transferred by their current employer to enter into the U.S. to manage an organization or a major function or division of an organization.
1. ELIGIBILITY:
You qualify for an L-1 visa if you have been employed outside the U.S. as a manager, executive or person with specialized knowledge for at least one out of the past three years, and you are transferred to the U.S. to be employed in a similar position. The U.S. company to which you are transferring must be a branch, subsidiary, affiliate or joint venture partner of your non-U.S. employer. The non-U.S. company must remain in operation while you have the L-1 visa. When we use the term non-U.S. company we mean only that it is physically located outside the U.S. Such a company may well be a foreign division of an American-based business or it may have originated in a country outside the U.S. Either one fits our definition of non-U.S. company.
To get an L-1 visa, it is not necessary that either your non-U.S. or prospective U.S. employer be operating in a particular business structure. Many legal forms of doing business are acceptable, including, but not restricted to, corporations, limited corporations, partnerships, joint ventures and sole proprietorships.
2. CRITERIA:
A. Manager, Executive or Person with Specialized Knowledge
To be eligible for an L-1 visa, the job you hold with the non-U.S. company must be that of manager, executive or person with specialized knowledge. You must have worked in that position a total of at least one year out of the past three years. For immigration purposes, the definitions of manager, executive and specialized knowledge are more restricted than their everyday meanings.
• Managers
A manager is defined as a person who has all four of the following characteristics:
• He or she manages the organization or a department of the organization.
• He or she supervises and controls the work of other supervisory, professional or managerial employees or manages an essential function of the organization.
• He or she has the authority to hire and fire those persons supervised. If none are supervised, the manager must work at a senior level within the organization.
• He or she has the authority to make decisions concerning the day-to-day operations of the portion of the organization which he or she manages.
First-line supervisors are lower management personnel who directly oversee non-management workers. A first-line supervisor is not normally considered a manager unless the employees supervised are professionals. The word "professional" here means a worker holding a university degree.
•ii. Executives
An executive is defined as a person who has all four of the following characteristics:
• He or she directs the management of the organization or a major part of it.
• He or she sets the goals or policies of the organization or a part of it.
• He or she has extensive discretionary decision-making authority.
• He or she receives only general supervision or direction from higher level executives, a board of directors or the stockholders of the organization.
• Persons with specialized knowledge:
The knowledge that is referred to in the term "specialized knowledge" covers any knowledge that specifically concerns the employer company, its procedures, products or international marketing methods.
B. Branch, Subsidiary, Affiliate or Joint Venture Partner
L-1 visas are available only to employees of companies outside the U.S. that have related U.S. branches, subsidiaries, affiliates or joint venture partners. There is also a special category of international accounting firms. For visa purposes, these terms have specific definitions.
• Branches
Branches are simply different operating locations of the same company. The clearest example of this is a single international corporation that has branch offices in many countries.
• Subsidiaries:
In a subsidiary relationship, one company must own a controlling percentage of the other company, that is, 50% or more. For L-1 purposes, when two companies are in the same corporate or limited form and at least 50% of the stock of a company in the U.S. is owned by a non-U.S. company, or vice versa, this is a classic subsidiary relationship.
• Affiliates:
Affiliate business relationships are more difficult to demonstrate than those of branches or subsidiaries because there is no direct ownership between the two companies. Instead, they share the fact that both are controlled by a common third entity, either a company, group of companies, individual or group of people.
There are two methods of ownership that will support an L-1 visa based on an affiliate relationship. The first is for one common person or business entity to own at least 50% of the non-U.S. company and 50% of the U.S. company. If no single entity owns at least 50% of both companies, the second possibility is for each owner of the non-U.S. company to also own the U.S. company, and in the same percentages. For example, if five different people each own 20% of the stock of the non-U.S. company, then the same five people must each own 20% of the U.S. company for an affiliate relationship to exist.
• Joint Venture Partners
A joint venture exists when there is no common ownership between the two companies, but they have jointly undertaken a common business operation or project. To qualify for L-1 purposes, each company must have veto power over decisions, take an equal share of the profits and bear the losses on an equal basis. In a situation where both the U.S. and non-U.S. companies are in the corporate or limited form and the majority of the stock of both is publicly held, unless they are simply branches of the same company that wish to transfer employees between them, the joint venture relationship is the only one that is practical for L- I qualifying purposes. The ownership of a publicly held company is too vast and diverse to prove any of the other types of qualifying business relationships.
• International Accounting Firms:
The Immigration Act of 1990 made it clear that L-1 visas are available to employees and partners of international accounting firms. In the case of big accounting firms, the partnership's interests between one country and another are not usually close enough for them to qualify as affiliates under normal L-1 visa rules. For this reason, the managers of such companies that could not, in the past, be transferred to U.S. international accounting firms, are now considered qualified to support L-1 visa petitions for their employees. This is provided the firm is part of an international accounting organization with an internationally recognized name. These rules are intended to apply only to a limited number of very large and prominent firms.
Visa processing can be difficult and confusing. If you would like the assistance of an experienced immigration attorney, please contact the firm by e-mail or call our offices. Bertolino LLP maintains offices in Austin, Houston and San Antonio. To reach an immigration law attorney in the Austin office, call 512.476.5757. For the San Antonio office, call 210.223.5553. For the Houston office, call 713.225.7474.
