L-1 Temporary Work Status ⋆ Borene Law Firm, P.A.

Frequently Asked Questions About L-1 Temporary Work Status

By Scott M. Borene and George C. Maxwell*

1. What is an L-1 status?

L-1 status is intended for foreign employees temporarily transferring to the U.S. The L-1 is a nonimmigrant visa available to employees who will work in the U.S. for an employer that is structurally affiliated with a company the employee worked for outside of the United States.

2. When would an employer use an L-1 visa?

The L-1 visa category is appropriate for many situations where the employer wants to transfer a foreign employee to fill a management or executive position in the U.S. The category is also appropriate for employees with “specialized knowledge” of the employer’s business. Unlike the H- 1B category, the L-1 does not require a bachelor degree or equivalent, there are no wage requirements, there is no annual limit on the number issued, and spouses of L-1’s may apply for work authorization. There is a closely related permanent residence category that may substantially simplify and speed up the green card process for certain eligible executives and managers.

3. What legal requirements must the employer satisfy to be eligible to hire an L-1 worker?

The foreign employer and the US employer must have a “qualifying relationship.” The relationship can be that of a parent, branch, subsidiary, or affiliate with common majority ownership, or common control by the same person or entity. The intended U.S. job must be that of a manager, executive or “specialized knowledge” employee. “Specialized knowledge” refers to employees with a special knowledge of the company’s products and their applications in world markets or an advanced level of knowledge of the company’s processes or procedures. Typical manager and executive positions may qualify, but the U.S. Citizenship and Immigration Services (USCIS) has an aversion to “first-line supervisors” of low-level employees. The category may also be used for managers of a business “function” who do not supervise other people.

4. What legal requirements must the employee satisfy to be eligible for L-1 status?

The L-1 worker must have been continuously employed abroad for at least one of the last three years by the related employer outside the U.S., in a position meeting the L-1 definition of manager, executive or “specialized knowledge” employee. In some cases, the employer may be eligible to use a ‘blanket’ petition for multiple L-1 workers. The L-1 worker must meet the normal screening criteria for entering the U.S. or changing from another immigration status in the U.S. If a candidate has a personal history of serious immigration violations or criminal activities, the L-1 status may be denied on that ground.

5. How long is an L-1 status valid?

Initial L-1 petitions may be approved for up to three years. If the U.S. entity is less than one year old, the initial period will be limited to one year. If there are material changes in the terms of employment or in the ownership or corporate structure of the employer or the related foreign entity during the petition period, the L-1 may become invalid. Also, changes in the legal relationship between the U.S. office and the overseas affiliate can affect the continued validity of L-1 status. If the employee engages in work activities not authorized on the petition, the employee is in violation of U.S. laws and potentially deportable.

6. How long does it take to get approval for L-1 status?

Currently, the processing time window for an initial USCIS decision after filing the petition with USCIS can be as short as 15 calendar days if the premium processing expedite fee is paid. Otherwise it can take several months to obtain a decision. Each L-1 petition is adjudicated based on facts pertaining to the individual candidate, the related employing entities and the position. Recently created entities, employers with complex affiliate relationships, or positions other than top management may require significant additional legal preparation time. If the candidate is outside the United States, processing times can be increased by several weeks while the U.S. government completes security clearances at the U.S. consulate. For Canadian citizens, NAFTA created an expedited procedure that in certain cases can reduce case preparation and processing time to a matter of days.

7. Can L-1 status be extended?

L-1 petitions may be renewed in two-year increments, with a total limit of seven years for managers and executives (L-1As), or a total limit of five years for “specialized knowledge” employees (L-1Bs). In certain circumstances there are exceptions to these time limits.

8. Does an L-1 automatically turn into a green card?

No. Many employers sponsor their L-1B “specialized knowledge” workers for permanent resident (“green card”) status, starting the process at least several years prior to the end of the fifth year of L-1 status, in order to obtain alternate employment authorization before the five year limit is reached. Employers can sponsor L-1A managers and executives in a more streamlined green card process, but it is often more cost effective to begin the process early and forego the expense of multiple L-1 extensions. Unlike certain other nonimmigrant statuses, such as F-1 students or B-1/B-2 visitors, an L-1 worker is legally permitted to have both temporary and permanent intentions at the same time (“dual intent”). Both the employer and L-1 employee are allowed to actively pursue permanent resident status for the L-1 worker.

9. How much administrative work by the employer is required?

The employer must review and sign government forms and supporting documents. A typical L-1 case may take a few hours of a human resource staff member’s time. As with any temporary foreign work status, the employer should maintain a tracking system so any changes in job duties will trigger a call to the employer’s immigration law firm before the changes occur.

10. What government agencies are involved?

The USCIS is responsible for examining L-1 petitions. Depending on the location of the job site, the petition must be filed at one of two USCIS Regional Service Centers. For employees working in the Midwest and West, L-1 petitions are filed at the USCIS Regional Service Center in California. If the candidate is outside the United States, the U.S. Department of State may also be involved in the process. Under the North American Free Trade Agreement (NAFTA) and its successor USMCA, a Canadian citizen can ‘file’ the employer’s petition with a Department of Homeland Security (DHS) Customs and Border Protection (CBP) inspector when seeking entry to the U.S. at an airport or other port of entry, normally receiving a decision within a few hours.

11. What is the role of the employer in the L-1 work visa process?

The employer must provide basic information about the L-1 worker’s intended job duties, the legal relationship between the foreign and U.S. entities, and the employer’s financial condition.

12. What is the role of the employee in the L-1 work visa process?

The foreign employee or candidate must provide accurate information and documentation at the lawyer’s and the government’s request. We generally ask the employee to complete a detailed questionnaire and to gather items from a list of personal documents. The employee must keep the lawyer apprised in advance of any intended changes in employment or travel plans so that the lawyer can adjust strategies as needed. If the employee is outside the U.S. or needs to travel outside the U.S., the employee should work with the lawyer to complete a visa application form and to prepare for the employee’s interview at a U.S. embassy or consulate abroad.

13. Who is on the employer’s L-1 work visa team?

Typically the L-1 team will include an immigration lawyer and a case manager from the employer’s outside immigration law firm as well as the foreign employee, the employee’s immediate supervisor or manager and an HR staff member. At a minimum the foreign employee and a human resources staff member must be available to assist in preparation of the necessary documents. The employer can designate any staff member with appropriate authority to sign the government forms. If a new U.S. subsidiary is being established, a business lawyer and Certified Public Accountant are also often part of the team advising on the non-immigration aspects of business start-up.

The L-1 petition materials will contain information about the job duties and employer’s minimum education and experience requirements, and basic information about the employer’s number of employees and financial condition. If a human resources or legal department staff member can readily obtain the necessary information, it is most efficient to have the same staff member responsible for all L-1 cases. It is often useful if the employee’s immediate supervisor is available to answer detailed questions about the position. Where a large employer will have multiple L-1 cases over time, an effort should be made to educate at least one executive and one legal department staff member about the basic legal requirements and procedures of the L-1 program. Senior executives who are often involved in oversight of the employer’s immigration compliance responsibilities include Vice President of Human Resources, Vice President of Administration, COO, or General Counsel.

14. What are the chances of success in a typical L-1 case?

Well-documented L-1 petitions that meet the basic legal requirements can have a high degree of success. There are however potential complications that would reduce the probability of approval. The chance of smooth approval may be somewhat reduced in cases involving recently created entities, employers with complex affiliate relationships, or employees other than top management.

15. Is there a minimum salary requirement?

No. However, L-1’s are intended for people with valuable knowledge. An unusually low salary could lead to closer scrutiny of the petition and a reduced chance of smooth approval.

16. Who usually pays the filing fees?

Anyone or any entity may pay the filing fee. In most cases, the employer chooses to pay the filing fee, but the employer is not required to do so.

17. Who usually pays the legal expenses?

Since the employer is the L-1 petitioner, the employer generally pays the legal costs and related expenses. The law does not currently prohibit reimbursement by the employee.

18. Can the L-1 employee’s spouse and children also get visas?

Yes. L-1 workers’ family members may accompany them in L-2 status. A separate application for the spouse and unmarried children may be needed—L-2 status is not automatic. L-2 status is not intended for children 21 years of age or older, or for extended family members such as parents or siblings of the L-1 worker.

19. Can the L-1’s spouse and children get permission to work in the U.S.?

The L-2 spouse may apply for permission to work by filing a basic USCIS application for work authorization and paying the required filing fee. Upon approval, the spouse will receive an employment authorization document, which may be renewed periodically while in L-2 status. The L-1 worker’s children are not eligible for employment authorization.

20. Can the L-1’s spouse and children get permission to attend school as part-time or full-time students in the U.S.?

Yes, spouses and children in L-2 status may attend public or private schools in the U.S.

Also known as L1, L-1A, L1A, L-1B, L1B.

*Scott M. Borene is the Founder and Managing Attorney of Borene Law Firm, P. A. The immigration lawyers now with Borene Law Firm have more than 70 years of combined professional experience helping clients with U.S. and global visa and immigration projects. Scott Borene was selected by other lawyers as 2020, 2018 and 2016 Lawyer of the Year in Minnesota in Immigration Law as noted by The Best Lawyers in America. He has been repeatedly recognized as one of the Top 20 Lawyers in the World “most highly regarded by other lawyers” in corporate immigration law. He is often called upon to act as an “expert’s expert” to advise other experienced immigration lawyers on complex immigration matters. Scott Borene is a past Director and a past Member of the Board of Governors of the American Immigration Lawyers Association (AILA), the world’s largest professional organization of immigration lawyers. He is the Editor-in-Chief of many leading professional reference books for immigration lawyers including The Global Immigration Guide: A Country-by-Country Survey and The Global Immigration Guide: Crossing Borders for Business, AILA’s most comprehensive books on Global Immigration. He served as Editor-in-Chief of Immigration Options for Academics and Researchers (2005), AILA’s leading Expert Occupational Handbook on immigration issues in higher education. He is the author of Dr. Yes – Some Practical Strategies for the Diagnosis and Treatment of Immigrant Visa Cases of Health Care Professionals. Scott Borene attended Harvard University in Cambridge, Massachusetts as a National Merit Scholar. After graduation from Harvard, he attended William Mitchell Law School in Minnesota. Scott Borene can be reached at sborene@borene.com.

George C. Maxwell is an Attorney with Borene Law Firm, P. A. The immigration lawyers now with Borene Law Firm have more than 70 years of combined professional experience helping clients with U.S. and global visa and immigration projects. Mr. Maxwell concentrates his immigration practice primarily on employment-related and business immigration matters. He is a past Chair of the Minnesota State Bar Association Immigration Section. He is also a past Chair of the International Business Law Section of the Minnesota State Bar Association and Chair of the American Immigration Lawyers Association (AILA) Minnesota/Dakotas Chapter. Mr. Maxwell speaks and writes frequently on immigration law topics. He authored Tips and Traps: Managing I-94 Complications, Bench and Bar, 2015, published by the Minnesota State Bar Association. In 2009, he was co-presenter at the Hennepin County Bar Association – Employment Law Section meeting on Immigration Law for Employment Lawyers. Also, in 2009, he was the author of Looking for World Class Talent? 20,000 U.S. Work Visas Remain for Newly- Hired Professionals, published in Bench and Bar. In addition to his extensive experience in immigration law, he has significant experience in international human rights litigation, business litigation, corporate internal investigations, and white collar enforcement and compliance. His prior legal work has taken him to Russia, Central Asia, Latin America, and Southeast Asia. Mr. Maxwell graduated with High Distinction from the University of Iowa Law School. He was a Note and Comment Editor for the Iowa Law School’s Transnational and Contemporary Problems Journal. He also holds a Bachelor of Arts degree from the University of Northern Iowa, and upon graduation received the Purple and Old Gold Award for Meritorious Scholarship in Russian. He speaks both English and Russian. He is also admitted to the Bar of the District of Columbia, in Washington, DC. He can be reached at gmaxwell@borene.com.