By Eric Welsh & Nancy E. Miller
In this age of globalization, it is imperative for companies to establish strong international identities. Businesses seeking to grow beyond domestic borders must build bases on foreign soil and staff them with competent, experienced managers and executives. In the United States, visas are available for certain qualifying managers and executives looking to make an intracompany transfer from their home base to a U.S.-based office or subsidiary. For companies or individuals seeking a temporary visa, the nonimmigrant “L-1A” visa is available. The employment-based first preference (or “EB-1”) visa is the permanent resident counterpart to the L-1A.
The L-1A visa is a nonimmigrant visa that is granted for a period of up to three years, with extensions available up to a maximum of seven years. EB-1 is a permanent resident classification for “priority workers,” which includes transferring executives and managers. The qualifications for L-1A and EB-1 overlap substantially with some distinctions. An L-1A is available to an executive or manager seeking entry to establish a new office in the United States, but EB-1 classification requires, as a prerequisite, that the American office already be in operation for at least one year.
Both the L-1A and EB-1 classifications are available to individuals who, within a three-year period preceding the application for admission to the United States, have been employed continuously for at least one year by a qualifying organization, and who are seeking entry to the United States in order to continue to provide services to that business (or its affiliate or subsidiary) in a capacity that is managerial or executive. (The L-1B visa is available for other employees who have “specialized knowledge” of value to the business. The EB-1 classification does NOT include “specialized knowledge” and is ONLY available to managers and executives.)
In order to meet the regulatory definition of a “qualifying organization,” a company must be “doing business” as an employer in the U.S. and at least one other country directly, or through a parent, branch, affiliate, or subsidiary. This requires that the company must have more than a mere “presence” in the United States, and must be actively engaged in the provision of goods or services. For L-1 purposes, the U.S. presence need not already be established before admission. An L-1 visa applicant may seek entry to the U.S. in order to help a foreign-based company open a new office in the U.S (i.e., an office that has been doing business in the U.S. for less than one year). When a person does enter with an L-1 visa to assist in the creation of a new office, the visa will be granted for a one-year period, which can be extended upon a showing that the new office has successfully operated for one year and is now financially able to maintain the employment of the manager or executive.
The L-1A visa and EB-1 classification require that the employee’s experience abroad, as well as his intended employment in the United States, be in a managerial or executive capacity. A “manager” will satisfy this requirement if she manages at least a “function” of the organization, but first-line supervision is not considered “managerial” unless the employees supervised are professionals. A “manager” must have authority to make critical personnel decisions, including hiring and firing. If not in a supervisory role, the manager must be in a senior-level position within the organization, and must have the authority to exercise discretion over the day-to-day activity or function for which she is responsible. For purposes of L-1A and EB-1, an “executive” is an individual who directs the management of the organization itself or one of its major components or functions, establishes goals and policies, has wide discretion, and receives only general supervision from higher executives, the board, or stockholders.
The L-1A visa, while issued on a nonimmigrant basis, does not require the applicant to prove “nonimmigrant intent.” Under the doctrine of “dual intent,” a person may be admitted as an L-1A nonimmigrant even with an expressed intent of ultimately pursuing permanent resident status. For example, an employee seeking entry to establish a new office may be admitted as L-1A, and after managing the new office for one year and establishing its viability, may then seek permanent status as EB-1. The EB-1 classification, unlike other employment-based classifications, does not require a labor certification, and may be self-petitioned (that is, the employer herself may file the petition, and does not need the company to file a petition on her behalf). In addition, because EB-1 is “priority” status, visas are typically available without backlog to qualifying executives and managers. If you are interested in taking advantage of this exciting possibility, contact an experienced and knowledgeable immigration attorney to help you accomplish your goal.