The overseas entities that seek to send employees to the United States under an L-1 visa are required to be related to the U.S. company in a specific manner. Similarly, the applicant must be employed in a specific kind of position, depending on if they are of L-1A or L-1B status. The following is some specific information regarding the types of business structures that are recognized as acceptable qualifying relationships and the types of jobs that are recognized as acceptable positions for L-1 status.
L-1 Qualifying Entities
In order for a company to qualify for L-1 status, the foreign company must have a specific kind of relationship with the respective U.S. company. The USCIS considers ownership and control as the main factors that establish the necessary qualifying relationship between business entities. An organization that seeks to qualify for L-1 visas must either be a parent, branch, affiliate, or subsidiary of the U.S. company, as defined by federal law.
- A parent means a firm, corporation, or other legal entity which has subsidiaries. In the immigration context, this could mean two scenarios:
- If a foreign entity owns more than 50% of a U.S. entity and is therefore a majority owner of the U.S. entity.
- If a U.S. entity owns more than 50% of a foreign entity and is therefore a majority owner of the foreign entity.
- A branch means an operating division or office of the same organization housed in a different location
- A subsidiary: a firm, corporation, or other legal entity of which a parent owns, directly or indirectly, more than half of the entity and therefore has control of; or, owns directly or indirectly half of the entity and controls the entity; or owns 50% of a 50/50 joint venture and has equal control and veto power over the entity as the other half of ownership; or, owns less than half of the entity, but in fact controls the entity.
- An affiliate means:
- One of two subsidiaries, both of which are owned and controlled by the same parent or individual, or
- One of two legal entities owned and controlled by the same group of individuals, with each individual owning and controlling approximately half the same share or proportion of each entity.
A contractual relationship (i.e. licensing/franchising) is generally not sufficient to establish the necessary relationship to qualify for the L visa.
L-1A Managers and Executives
The L-1A visa beneficiary should hold a managerial or executive position. An executive position is one in which the employee primarily:
- Directs the management of the organization or a major component function;
- Establishes goals and policies;
- Exercises wide latitude in discretionary decision making, and
- Receives only general supervision or direction from higher level executives, board of directors or stockholders.
Managerial capacity means an assignment with an organization in which the primary duties of the employee include:
- Managing the organization, department, subdivision, function or component;
- Supervising and controlling the work of other supervisory, professional or managerial employees, or managing an essential function within the organization or department or subdivision of the organization;
- The authority to hire and fire or recommend personnel actions (if other employees directly supervised), or manages an essential function within the organization or department or subdivision of the organization.
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