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USCIS will issue an L-1 visa for a new US office of a foreign corporation that has been doing business in the US for less than one year. The “new office” L-1 has special rules.

The “new office” L-1 is defined as a US business that is at least 50% owned and controlled by a foreign corporation or by the same individual or group of individuals that own the foreign company; and has been doing business in the US for less than one year.

By its nature, the “new office” L-1 is in its initial stage of development. Therefore the rules differ somewhat from the regular L-1 visa petition. In general, the new office L-1 visa is granted for one year to the employee being transferred.  By the end of the one year, the US company must show growth and development, and be able show that it can fully qualify as an L-1 business, that is, doing regular and continuous business, with enough employees to require an executive or managerial employee, and otherwise fully meet the requirements of the L-1 regulations.  If this happens, USCIS will grant an extension of the employee’s L-1 visa for up to 7 years if an executive or manager employee, and for 5 years if a specialized knowledge employee.

Requirements:

Sufficient Physical Premises:  The US office must have enough office space to house the new business. In the past this usually meant an office lease, or some other evidence of physical premises. However, modern businesses sometime use virtual-offices with ability to telecommunicate. Modern offices do not always have a need for an actual physical space. In these situations, to determine if actual physical premises are really necessary for a new office, USCIS recently stated that they will look at the type of business being conducted and all of the circumstances and facts presented.  Hence, a virtual office may in some cases be permitted.

Experience requirement:  The Beneficiary has been employed in an executive of managerial capacity for one continuous year in the 3 year period preceding the filing of the L-1 petition.

Position offered with the new US office:  The proposed US employment position involves executive or managerial authority over the new operation.

The US operation, within one year of the approval of the petition, will be able to support and executive or managerial position as defined in the L-1 regulations (this usually means that there are enough employees to require an executive or senior manager). USCIS will review supporting information including:

1) The proposed nature of the US office, describing the scope of the business, organizational structure, and financial goals;

2) The size of the US investment and financial ability of the foreign parent company to remunerate (pay) the beneficiary and to commence doing business in the United States; and

3) The organizational structure of the foreign parent company.

When the beneficiary will be coming to the US in a “specialized knowledge” capacity to open or be employed with a “new office” (not executive or managerial, but having advanced and specialized knowledge of the parent company’s business methods, procedures, technology, etc.), the application must include evidence of:

-Physical premises (see above)

-The US business will have proper ownership relationship with the foreign parent –company (also explained above).

-The company has the financial ability to pay beneficiary and commence doing business in the US.

When Beneficiary is an owner or major stockholder of the company, the application must show evidence that Beneficiary’s services will be used for a temporary period, and that beneficiary will be transferred to an assignment abroad upon completion of the temporary services in the US.

Original I-797 and Reversal of USCIS Policy

Recently USCIS changed its policy and began sending the original Form I-797 approval notices for I-129 visa petitions (e.g H-1B, L-1, O-1, etc.) to the employer, instead of sending the original to their immigration attorney as used to happen. Many of these approval notices also include attached I-94 cards. The attorney’s office which used to receive the original I-797, now receives the “courtesy copy” that the employer used to receive.   

USCIS probably changed its policy for security reasons. But the problem is that there is information on the original I-797 that is not on the courtesy copy and the attorney needs to review the original I-797 for accuracy, and to contact USCIS to correct any mistakes.  The attorney’s office must also be able to provide direction and guidance to the employer and employee-beneficiary based on the information on the original I-797 approval. Hence, employers should provide their attorney with a copy of the original I-797, and I-94 if attached.