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Law Offices of Farhad Sethna – Immigration & Business Law

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The L-1A Visa: Back Door To Permanent Residency?

  • L1

This article introduces another member of the INS (Immigration and Naturalization Service) “alphabet soup” – the “L” visa. The L – Visa is issued to intra-company transferees: these are individuals transferring from a business entity outside the U.S.A. to an affiliated enterprise within the U.S.A. The L visa may be a viable alternative, in some cases, to Labor Certification.

There are two kinds of L Visas. There is the L-1A Visa which is intended for managerial level persons to reside and work in the United States, and the L-1B, which is intended for persons with technical knowledge, such as engineers, etc. to reside and work in the United States. Spouses and children of L-1’s enter the U.S.A. with L-2 Visas.

In order to qualify for the L-1 Visa either the manager or the technical staff person must be able to fulfill the following requirements:

  1. There must be a United States firm and a foreign firm, which are affiliated;
  2. The alien must have worked for the foreign firm for at least one year out of the prior three years, not including any time spent on visits to the United States; and
  3. The alien must have occupied either a managerial or a technical position within the foreign affiliate.

Given the fact that there needs to be an affiliation between the United States firm and the foreign firm, one would think that the United States entity must have been in existence for at least a certain period of time. However, this is not the case. The L-1A manager can enter the country and set up a corporate or other entity in the United States. Affiliation between the United States entity and the foreign company is usually accomplished by shareholding or other investment in the U.S. company. Generally, if the foreign company is making the investment, it would have substantial affiliation with the U.S. company due to the fact that most, if not all, of the start up capital of the U.S. company comes from the foreign company and the foreign company is going to be infusing additional working capital into the U.S. entity as and when required. Note however that there is no minimum requirement for stock holding in the U.S. company in order to qualify for affiliate status. Therefore, even a minimal stock holding of five to ten percent may be adequate.

It is important that the distinction between L-1A and L-1B’s be highlighted. L-1A managers are considered priority workers for the purposes of immigration. L-1B’s, as technical staff persons are not similarly considered. Therefore, an L-1A employee may apply for permanent residency as a priority worker, without having to obtain Labor Certification. As a priority worker, the L-1A employee would leap-frog the processes of Labor Certification, resulting in considerable savings of time and money. On the other hand, the L-1B technical worker may not skip the Labor Certification process. Therefore the L-1A becomes a very attractive route for multinational executives who wish to permanently reside in the United States.

Additionally, the L-1A is very attractive because unlike the E-1/E-2 Treaty Trader or Treaty Investor visa, the requirements for obtaining L-1A status are fairly straight forward. Also, E-1 and E-2 non-immigrants cannot obtain permanent residency under the E – visa category. Similarly, the L-1 is more attractive in comparison with the “Investor Visa” category, because many L-1A executives may not be able to afford the initial high investment of $500,000.00 or $1,000,000.00 to invest in a U.S.-based business enterprise.

Therefore, the “L” visa is aptly named: for qualified individuals it is a “light” at the end of the confusing, convoluted and often-times frustrating process of immigration to the U.S.A.

May 16, 2008 Farhad Sethna

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