News

The L-1 (intra-company transferee) visa is granted to employees who are transferred from a parent, subsidiary or affiliated company abroad to a closely related sister company in the United States. There are 2 categories of employees that may qualify: managerial and executive employees (L-1A), and employees with “specialized knowledge” (L-1B).

In this article, we will discuss the requirements for L-1A managers and executives.

The foreign organization or company must have employed the employee as a manager or executive for at least one continuous year within the three years preceding the L-1A petition. In addition, the employee must seek to come to the U.S. temporarily to provide services to a branch, subsidiary or affiliate of the overseas company as a managerial or executive.

For L-1A purposes, a “manager” is defined as an employee who primarily:

1) Manages the organization, or a department, subdivision, function, or component of the organization;

2) Supervises and controls the work of other supervisory, professional, or managerial employees, or manages an essential function within the organization.

3) If directly managing other employees, has authority to hire and fire, or recommend personnel actions (such as promotions, vacation, work schedules, etc.) and

4) Exercises authority over day-to-day operations of the company, department or function.  A “first-line” supervisor (does not manage supervisory staff) is not considered a manager for L-1 purposes, unless the employees supervised are professionals (must hold at least a bachelor’s degree to perform their job).

An “executive” is defined as an employee who primarily:

1) Directs the management of the organization, or major component or function.

2) Establishes goals and policies of the organization, component or function.

3) Exercises a wide latitude in decision-making authority, and

4) Receives only general supervision or direction from higher-level executives, board of directors, or stockholders.

USCIS will give smaller companies a more difficult time proving that the employee will serve in a managerial capacity. USCIS still has a tradition view of corporate structure, and prefers companies with standard managerial hierarchy. i.e. President – Senior VP – Dept. Manager – Asst Manager, etc. It is easier to convince USCIS that a company with many employees needs a manager.

Problems arise with smaller US subsidiary companies, especially companies set up for sales and marketing purposes. Even for the most senior employee in the US, it may be difficult to prove that the head of a small US marketing branch or division will act as a manager for L-1A purposes. USCIS may conclude that they will spend most of their time performing the ordinary tasks to provide a service or produce a product, and not as a “manager”.

The L-1A petition should break down and detail the employee’s specific managerial duties and provide the percentage of total working time the employee will spend performing each duty.  They should also provide an organizational chart clearly showing showing the employee’s proposed management position and the employees they will supervise.

In a recent case, L-1A classification was approved on appeal where a Marketing Director for a wine production company with worldwide distribution was to be transferred to supervise a division of the US company that included only 1 other US employee, but included 4 employees in the home country. On appeal, the US petitioner was able to show that the overseas and US employees were all part of a sales and marketing subdivision of a successful worldwide company, and that the Marketing Director’s duties were primarily related to management of that subdivision. The company also showed that the beneficiary would supervise and control the work of subordinate professional employees with authority to hire and fire employees under their supervision.