The L-1 intracompany transferee visa is a temporary non-immigrant visa which allows companies to relocate foreign qualified employees to its US subsidiary, affiliate or parent company.

Companies wishing to transfer their executives, managers and other special employees from a foreign office to a related office in the United States may be eligible for L-1 status. L-1 status may be accorded to applicants who meet the following criteria:

  • Was continuously employed in a full-time role for one year, of the preceding three, by a parent, branch, affiliate or subsidiary of the US petitioning company;
  • Was employed abroad as an executive, manager or in a position requiring specialized knowledge;
  • Will be employed in the US as an executive, manager or in a position requiring specialized knowledge (although it is important to note that the roles in the US and abroad need not be the same. For example, an individual may have worked in a position requiring specialized knowledge in the foreign office but will be transferred to the US as a manager)

In order to determine if a qualifying relationship exists between the US entity and its foreign parent, branch, affiliate or subsidiary, the USCIS examine ownership and control of the respective entities. In short, the petitioner needs to demonstrate that there is a relationship of ownership and control between the US entity and its foreign parent, branch, affiliate or subsidiary.

In some cases, the L-1 petitioner may seek to establish the control requirement, based on the use of proxy votes. Proxy votes are obtained when one or more equity holders irrevocably grant the ability to vote their equity to another equity holder, thereby effectively and legally giving the other equity holder “control” over the company in question.

How Have The L-1 Intracompany Transferee Eligibility Requirements Changed?

The new policy memorandum clarifies that when proxy votes are a determining factor in establishing control, the petitioner must now show the proxy votes are irrevocable from the time of filing through the time USCIS adjudicates the petition, along with evidence the relationship will continue during the approval period requested. At all material times, the burden is on the petitioner to demonstrate that there is a qualifying relationship of ownership and control between the US entity and its foreign parent, branch, affiliate or subsidiary.

In practice, the policy memorandum is likely to lead to increased scrutiny of L-1 intracompany transferee petitions by the USCIS, particularly where proxy votes are used to show a qualifying relationship of ownership and control exists with the US and foreign enterprise. It is therefore imperative to ensure that any L-1 intracompany transferee petition is meticulously prepared, properly drafted and supported by all of the appropriate evidence to ensure the petitioner successfully discharges the burden of proof.

Davies Legal Immigration

At Davies Legal Immigration, we offer advice and representation in relation to all types of U.S visa application, including L-1 visas. We provide a professional, friendly and efficient service, at a competitive fixed fee. Call now for advice regarding the merits of pursuing an application for an L-1 visa and a complimentary quote.

 

 

 

Published: 4th July 2018