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< Back to current issue of Immigration Daily < Back to current issue of Immigrant's Weekly

American Dream - Indians Can Fulfill Through Intra-Company Transferee L-1 Visa
by Sudhir Shah

America is a nation of immigrants. Yet its immigration policy is strict. Each day new restrictions are imposed on immigrants intending to enter that country.

Those who do not have immediate family members who are American citizens or green card holders, who are already married and therefore cannot marry an American to obtain a visa, who do not qualify to participate in the diversity lottery program, who do not have a million dollars to invest, who are not possessed of extraordinary ability or skill, and who do not desire to migrate to their dream country illegally therefore feel that they have to abandon their dream of going to that land of plenty.

Almost all people from third world countries have an "American Dream." But they find that the road to this dream is no longer smooth and is turning rougher day by day.

But all is not lost.

There is a road which makes it possible for you to put your feet legally on this dream country. On this road there is no restriction to invest a minimum amount. You need not be a close relative of an American citizen, you do not have to marry an American or possess extra ordinary skill or qualification. All that you need to do is to set up an extension of your Indian business in America.

If you have been employed for at least one year, in the last three years, by a company or a firm in India as a Manager or executive person, or have specialized knowledge, and your company or firm has a branch, subsidiary, affiliate or joint venture partner in America, you may qualify for an L-1 visa and can be transferred to America to take up a similar position. With an L-1 visa, you can remain in America continuously until your L-1 status expires, or can even travel in and out of America as often as you want. You will however be restricted to work only with that American branch, subsidiary, affiliate or joint venture partner of your Indian company or firm. This visa will initially be for 3 years and you will be entitled for its extensions of two years each till a total period of 7 years. After a year you may also be entitled to apply for a green card through employment. Your accompanying relatives will also be eligible to obtain visa, but they will not be allowed to work in America.

A person is called a "manager" in the parlance of American immigration laws when he/she manages the organization or a department of that organization, supervises and controls the work of other supervisory professional, or manages employees and has the authority to hire and fire those persons whom he supervises. If he/she is not supervising any one then he/she should at least work at a senior level with the organization. A person who directs the management of the organization or a major part of it, sets the goals or policy of the organization or part of the organization, has extensive discretionary decision making authority and is subjected to general supervision or direction only from higher level executives, partners, board of directors or the stock holders of the organization is termed as "executive" under the American immigration laws.

"Persons with specialized knowledge" are people having knowledge that is specifically concerning the company or firm in which they are employed, the procedure of that company or firm, products of the company or firm and the international marketing method of that firm.

With the advent of globalization in India, the Reserve Bank of India, subject to certain terms and conditions, now permits an Indian company or firm to open overseas branch offices. The present banking laws and rules are liberal in granting such permission. The Reserve Bank of India now permits withdrawal of foreign exchange towards operating costs required for maintaining a branch office in America. For Indian exporters with a good track record, such a permission can be obtained within 4 weeks, if all the required documents are submitted at a time and are found in order. For others not engaged in export business, it may take about 10 weeks to obtain such permission.

Once such a branch is established in America, the American government may grant an L-1 visa to the manager, executive or person with specialized knowledge who has been employed for at least one year during last three years with the Indian Company. The person will also be permitted to take his family and kids along with him. Such a person, after running the said branch office for one year in America, may be eligible to apply for permanent residence in America by converting his L-1 status to green card and upon his obtaining a green card, his family and children, too, would be entitled to apply for green card.

Even the sole proprietor of an Indian firm, if he is able to convince the American immigration authority that in his absence there would be a responsible person in India to look after and manage day to day running of his Indian business, can also, by establishing a branch office in America, obtain L-1 visa for himself for attending the business of his branch office in America.

It is not necessary that the branch which is established in America should carry on the very same business which is being carried on in India. The income incurred by the branch office in America will be subject to American tax laws. However, due to India being a signatory to the double taxation avoidance treaty with America, the income of the branch office in US will not be taxed once again in India. There is also no requirement that the branch office in America should employ a particular number of people who are American citizens and/or green card holders. The branch office established in America would also be entitled to the benefits of infrastructures and financial facilities which are available to other American companies. The whole process of setting up such branch and obtaining L-1 visa can be completed within few months.

One can plan all this methodically in advance. There is nothing wrong or illegal about it, if the entire operation, the Indian business and the branch office set up in America, is genuine.

So one need not be disheartened if he/she has no close family members in America or does not possess other qualifications for obtaining green card for America. With systematic planning and sincere efforts one can easily travel on this road to his/her dream country.


About The Author

Sudhir Shah is the Proprietor of Sudhir Shah & Associates, a law firm in Mumbai, India of more than 30 years standing. He advises Indian clients on US Immigration Laws. Mr.Shah regularly answers readers questions on Immigration related issues in "Economic Times on Sunday". His articles on US Immigration laws are regularly published in two leading vernacular language newspapers of India. Since the recessionary trend started in US and post September 11,2001's attacks he has been invited on several occasion by CNBC TV Channel to participate in panel discussions to give his views on the events affecting US Immigration Laws. His website is www.sudhirlaw.com and e-mail address is sudhir.shah@vsnl.com


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