L-1B INTRACOMPANY TRANSFEREE FOR EMPLOYEES WITH SPECIALIZED KNOWLEDGE

L-1B Intracompany Transferee Specialized Knowledge

The L-1B nonimmigrant classification enables a U.S. employer to transfer a professional employee with specialized knowledge relating to the organization’s interests from one of its affiliated foreign offices to one of its offices in the United States.  This classification also enables a foreign company which does not yet have an affiliated U.S. office to send a specialized knowledge employee to the United States to help establish one.  The employer must file Form I-129, Petition for a Nonimmigrant Worker, on behalf of the employee.

General Qualifications of the Employer and Employee

To qualify for L-1 classification in this category, the employer must

• Have a qualifying relationship with a foreign company (parent company, branch, subsidiary, or affiliate, collectively referred to as qualifying organizations); and
• Currently be, or will 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.  While the  business must be viable, there is no requirement that it be engaged in international trade.

Doing business means the regular, systematic, and continuous provision of goods and/or services by a qualifying organization and does not include the mere presence of an agent or office of the qualifying organization in the United States and abroad.

Also to qualify, the named employee must

• Generally have been working for a qualifying organization abroad for one continuous year within the three years immediately preceding his or her admission to the United States; and
• Be seeking to enter the United States to render services in a specialized knowledgecapacity to a branch of the same employer or one of its qualifying organizations.

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 expertise in the organization’s processes and procedures.  Such knowledge is beyond the ordinary and not commonplace within the industry or the petitioning organization.  In other words, the employee must be more than simply skilled or familiar with the employer’s interests.

L-1 Visa Reform Act of 2004

The L-1 Visa Reform Act of 2004 applies to all petitions filed on or after June 6, 2005, and is directed particularly to those filed on behalf of L-1B employees who will be stationed primarily at the worksite of an unaffiliated employer.  In order for the employee to qualify for L-1B classification in this situation, the petitioning employer must show that

• The employee will not be principally controlled or supervised by the unaffiliated employer; and
• The work being provided by the employee is not considered to be labor for hire for the unaffiliated employer.

New Offices

For foreign employers who are seeking to send an employee with specialized knowledge to the United States in order to be employed in a qualifying new office, it must also be shown that

• Sufficient physical premises to house the new office have been secured; and
• The employer has the financial ability to remunerate the employee and begin doing business in the United States.

Period of Stay

Qualified employees entering the United States to establish a new office will be allowed a maximum initial stay of one year.  All other qualified employees will be allowed a maximum initial stay of three years.  For all L-1B employees, requests for extension of stay may be granted in increments of up to an additional two years, until the employee has reached the maximum limit of five years.

Family of L-1 Workers

The transferring employee may be accompanied or followed by his or her spouse and unmarried children who are under 21 years of age.  Such family members may seek admission in L-2 nonimmigrant classification and, if approved, generally will be granted the same period of stay as the employee.  If these family members are already in the United States and seeking change of status to or extension of stay in L-2 classification, they may apply collectively, with fee, on Form I-539.  Spouses of L-1 workers may apply for work authorization by filing Form I-765 with fee.  If approved, there is no specific restriction as to where the L-2 spouse may work.

Blanket Petitions

Certain organizations may establish the required intracompany relationship in advance of filing individual L-1 petitions by filing a blanket petition.  In order to establish eligibility for blanket L certification, the employer

• And each of the qualifying organizations must be engaged in commercial trade or services
• Must have an office in the United States which has been doing business for one year or more
• Must have three or more domestic and foreign branches, subsidiaries, and affiliates
• Must meet one of the following criteria
  • Along with the other qualifying organizations, have obtained at least 10 L-1 approvals during the previous 12-month period; or
  • Have U.S. subsidiaries or affiliates with combined annual sales of at least $25 million; or
  • Have a U.S. work force of at least 1,000 employees.

In order to qualify under the blanket petitioning process, the employee having specialized knowledge must also be a professional.

The approval of a blanket L petition does not guarantee that an employee will be granted L-1B classification.  It does, however, provide the employer with the flexibility to transfer eligible employees to the United States quickly and with short notice without having to file an individual petition with USCIS.  In most cases, once the blanket petition has been approved, the employer need only complete Form I-129S, Nonimmigrant Petition Based on Blanket L Petition, and send it abroad to the employee along with a copy of the blanket petition Approval Notice and other required evidence, so that he or she may present it to a consular officer.