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The L-1 Visa: Questions and Answers for the Foreign Enterpreneur
by Prepared by the law offices of Cyrus D. Mehta

* What is the nature of the L-1 visa? How long is it valid?

The L-1 visa facilitates the transfer of key employees from a foreign corporation to a U.S. branch, parent/subsidiary or affiliated entity. The purpose of the visa, also known as the intra-company transferee visa, is to give U.S. corporations the ability to bring in top level managerial or specialized employees into the USA.

The entity in the USA can be a branch office of a foreign company. Or it could be a parent/subsidiary. To establish the parent/subsidiary relationship one entity must own more than 50% of the shares of the other, and must also be able to control it.

Or the U.S. and foreign entity can also be siblings (or affiliates) i.e. they are owned by the same owner or same group of owners in similar proportions.

The employee must have also worked in an executive, managerial or specialized knowledge capacity for the foreign entity for at least one year in the past three years and is being sponsored to work in the same capacity for the U.S. entity.

The L-1 visa is valid for seven years, but is convertible to permanent residence before this time period. The specialized knowledge L-1 is valid for only five years. The specialized knowledge L-1 cannot be converted to permanent residence. A person under the specialized knowledge L-1 would still be able to obtain permanent residency through other avenues.

For new entities, the L-1 visas is issued for one year and then the petitioning entity must again re-apply for another two years.

* What is the minimum investment requirement?

There is no minimum investment requirement. However, there must be enough revenues to pay the salary of the company's officers and to support a leave and other expenses. Essentially, the U.S. entity must be able to support the employee in a managerial/executive capacity. If the U.S. entity has just been formed, it must demonstrate that it would be able to support the foreign national in a managerial/executive capacity.

* What kind of company can open a branch of subsidiary in the USA under the L-1 visa?

Any type of corporate organization is recognized, so long as the qualifying relationship is created.

* What is the time-frame for establishing a branch or subsidiary and obtain the L-1 visa?

These can be organized in a week.

The L-1 visa takes about two months or longer to be approved after it is filed with the INS.

* What is the nature of the business that is legally permissible under the L-1 visa?

All kinds of businesses are permissible, so long as they are not illegal. The U.S. entity does not even have to be in the same line of business as the foreign entity.

* Does the L-1 visa enable the principal applicant to sponsor his family members under this visa?

The spouse and minor children can accompany the principal on L-2 dependent visas. While one can study in the U.S. as a dependent, work is not permissible unless the dependent acquires his/her independent work visa.

* How long does the company/firm have to be in business in the country of origin?

At least one year, to establish that the applicant has worked in the qualifying capacity for one year.

* What is the documentation requirement for L-1 applications?

It should be shown that the foreign company is a viable entity. Its memorandum/articles of association or partnership deed, recent balance sheets, tax filings, payroll evidence, brochures, government permits for exports are essential.

There is also a need to establish the existence of a qualifying entity in the USA. Therefore a branch, subsidiary or parent should be organized in the USA. The company's representative should have done this, as well as acquired a lease for business premises. It is essential to show imminent business activity.

A description of the representative's job duties in the foreign company and prospective duties in the USA is also required. It is essential that the representative was employed for at least one year or more in a managerial, executive or specialized knowledge capacity in the foreign company.

* Do I need to obtain the help of other professionals?

It is imperative for the foreign national to seek advice of corporate and tax counsel of certified public accountant. The U.S. entity should be structured so as to minimize tax liabilities in the U.S. and foreign country. After the corporation is established, it must also file periodic reports with the IRS and file federal, state and local taxes.


About The Author

Cyrus Mehta, a graduate of Cambrdige University and Columbia Law School, practices immigration law in New York City. He is Vice Chair of the American Immigration Lawyers Association's National Labor Department Liaison Committee, trustee of the American Immigration Law Foundation and recipient of the Joseph Minsky Young Lawyers Award. He is also Chair of the Immigration and Nationality Law Committee of the Association of the Bar of the City of New York. He frequently lectures on various immigration subjects at legal seminars, workshops and universities, and may be contacted at 212-686-1581 or info@cyrusmehta.com. His website is www.cyrumsmehta.com



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