L-1 Legal Requirements
- Have a “qualifying relationship” with a foreign company.
-Qualifying relationships can take such forms as the petitioning company being a parent, branch office, subsidiary, or affiliate of the foreign business entity; these are collectively referred to as “qualifying entities” or “qualifying organizations.”
- Be, or plan to be, “doing business” as an employer in the United States and in at least one other country, directly or through a qualifying organization, for the duration of the beneficiary’s stay in the United States as an L-1 visa holder. It can be either an existing company or a New Office, meaning an organization which has been doing business in the United States through a parent, branch, affiliate, or subsidiary for less than one year.
- For New Office, the petitioner shall submit evidence that,
- Sufficient physical premises to house the new office have been secured;
- The employee has been employed as an executive or manager for one continuous year in the three years preceding the filing of the petition; and
- The new U.S. office will support an executive or managerial position within one year of the underlying petition’s approval.
- “Doing business” in this context is defined as the regular, systematic, and continuous provision of goods and/or services by a qualifying organization. “Doing business” does not merely mean the presence of an agent or office of the qualifying organization in the United States and abroad.
The alien employee must have been employed in a managerial, executive capacity or involves specialized knowledge by the overseas affiliate, parent, subsidiary or branch of the U.S. employer for at least one year within 3 years preceding the time of application for admission into the United States. They must also intend to come to the U.S. to work in a managerial, executive capacity or involves specialized knowledge with the employer. Additional conditions may apply according to the professional capacity an alien is seeking to assume.
To qualify as a manager, the alien must prove that he or she personally:
- Manages the organization, department, component, or function;
- Supervises and controls the work of other supervisory, professional, or managerial employees, or manages an essential function within the organization, or a department or subdivision of the organization;
- Has the authority to hire, terminate, and make other personnel decisions; and
- Exercises discretion over day-to-day operations of the activity or function.
To qualify as an executive, the alien must prove that he or she primarily:
- Directs the management of an organization, major component, or function;
- Establishes goals and policies;
- Exercises wide latitude in discretionary decision-making; and
- Receives only general supervision from higher executives, the board of directors, or stockholders.
Specialized knowledge means special knowledge possessed by an individual of the petitioning organization’s product, service, research, equipment, techniques, management, or other interests and its application in international markets, or an advanced level of knowledge or expertise in the organization’s processes and procedures.
- According to USCIS L-1B Adjudication Policy Memo published in 2015, a petitioner can demonstrate “specialized knowledge” by establishing either one of two statutory criteria. Under the statute, a beneficiary is deemed to have specialized knowledge if he or she has: (1) a “special” knowledge of the company product and its application in international markets; or (2) an “advanced” level of knowledge of the processes and procedures of the company.
- Special knowledge: knowledge of the petitioning organization’s product, service, research, equipment, techniques, management, or other interests and its application in international markets that is distinct or uncommon in comparison to that generally found in the particular industry.
- Advanced knowledge: knowledge of or expertise in the petitioning organization’s specific processes and procedures that is not commonly found in the relevant industry and is greatly developed or further along in progress, complexity, and understanding than that generally found within the employer.
- In addition, USCIS will consider the following non-exhaustive factors to determine whether a beneficiary’s knowledge is specialized:
- The beneficiary possesses knowledge of foreign operating conditions that is of significant value to the petitioning organization’s U.S. operations.
- The beneficiary has been employed abroad in a capacity involving assignments that have significantly enhanced the employer’s productivity, competitiveness, image, or financial position.
- The beneficiary’s claimed specialized knowledge normally can be gained only through prior experience with the petitioning organization.
- The beneficiary possesses knowledge of a product or process that cannot be easily transferred or taught to another individual without significant economic cost or inconvenience (because, for example, such knowledge may require substantial training, work experience, or education).
- The beneficiary has knowledge of a process or a product that either is sophisticated or complex, or of a highly technical nature, although not necessarily unique to the petitioning organization.
- The beneficiary possesses knowledge that is particularly beneficial to the petitioning organization’s competitiveness in the marketplace.