California Immigration Lawyer, Asylum Lawyer, Deportation Attorney, US Immigration Attorney

Introduction:

Most employers believe that the most difficult part of the H1-B Visa process is the H1-B Visa approval process.  However, seasoned immigration attorneys realize that after the U.S. Citizenship and Immigration Services (“USCIS”) approves an employer’s H1-B Visa application, maintaining the valid H-1B Visa is arguably even more difficult. 

This is where an experienced immigration attorney becomes a company’s invaluable asset.  Employees and their employees must adhere to strict H1-B Visa guidelines that carefully define an H1-B employee’s place of employment, job duties, and hours of employment.  A change or addition to any of those categories can potentially trigger a loss of status, or even subject the employer to liability. 

Therefore, this article explores (1) possible situations where an employer must notify the USCIS of changes in a H-1B employee’s duties, (2) whether a new or amended H-1B petition must be filed, and (3) how an employer can properly terminate an H-1B employee to avoid liability.

1. Material Changes – When must an Employer File a New or Amended H1-B Petition

The USCIS requires employers to notify the USCIS of “material changes” in an H1-B holder’s employment.  Though a material change is sometimes defined as a substantial alteration of terms or conditions, it is best to take a case-by-case analysis of whether the USCIS must be notified.  Some examples that constitute a material change include: 

• Place of Employment:
Typically, an H-1B employee must work at the location that is listed in his or hers Labor Condition Application (“LCA”).  If an employer wants an employee to work at a location other than the one mentioned on the LCA, the employer must notify the USCIS and file a new LCA before the employee begins work at the new location.  Otherwise, the court may decide that the employee worked without proper authorization.  Note that an employer does not have to notify the USCIS if the new workplace is “within the area of intended employment” listed on the LCA, or if the employee’s job duties require constant travel – i.e. a circus employee. 

• Job Duties
Since an H-1B employee is employed in a “specialty occupation”, an employer must notify the USCIS of any changes in an H-1B employee’s duties that alter or change the specialty occupation.  The USCIS will determine if there is a material change in the employee’s specialty occupation by considering such factors as new duties and whether these changes place the employee in a different prevailing wage category. 

• Hours of Employment
Generally the employer does not have to contact the USCIS of a change in an H-1B employee’s hours unless it falls below full-time employment (usually at least 35 hours a week).  An employer does have an option of temporarily laying off an employee, but the employer still must pay the employee the prevailing wage.  Otherwise, the employer may be civilly liable. 

• Employer
Once an employee is granted H-1B status, the employee can work for a new employer (besides the initial sponsor) provided that the new employer immediately notifies the USCIS and files a new LCA before the employee joins the new company.

2. Should I File a New or Amended H-1B Petition?

A new employer should file a new H-1B and LCA before the employee joins the new employer. Though the USCIS has not expressly stated any timelines about amended H-1B petitions, it would be prudent for the employer to file before any material change occurs to avoid possible liability or immigration problems. 

However, not all changes in employment conditions must be reported to the USCIS.  These include:

• Name of the Employer
There is no need to immediately notify the USCIS if the sponsoring employer has merely changed their name, as long as the employee’s job duties remain unchanged.  The employer can simply notify the USCIS when they file for the employee’s H-1B extension. 

• Changes in Wages
An employer does not have to notify the USCIS of a change in an employee’s wages unless it falls below the required prevailing wages. 

• Corporate Restructuring – The “Successor-in-Interest” Doctrine
In today’s business world, mergers, acquisitions, or consolidations have become quite common.  An employer is not required to notify the USCIS of such an occurrence provided (1) the employee’s duties remain unchanged and (2) the new corporate entity that resulted from the merger agrees to take on all immigration related obligations and liabilities.  This is known as the “successor-in-interest” doctrine.

Note that though the new corporate entity does not have to file a new H-1B petition, the new employer must meet the following requirements before the corporate change: (1) the new employer must keep a record of which H-1B employees transferred to the new employer, and (2) the new employer must update its public access files – this includes (a) each affected LCA number, (b) how the new employer’s wage system complies with the H-1B requirements, (c) the new employer’s identification number, and (d) a sworn statement by an authorized official from the new company agreeing to assume all immigration obligations and liabilities. 

3. Termination of Employees – Protecting Employers from Liability

Because an employer has to notify the USCIS of any material changes in an H-1B employee’s duties, this naturally includes situations where the employer fires or lays off an employee before the H-1b expires.  An employer is not discharged from the employer’s obligations or duties (included paying wages) by merely terminating the employee; a “bona fide termination” must occur.  A bona fide termination requires (1) formal notice to the USCIS that the employee was fired, (2) that the employer offer to pay the terminated employee’s “reasonable costs” of returning home.  

Note that the termination is effective as soon as the USCIS receives notice, not necessarily the date the USCIS revokes the employee’s H-1B Visa.  Also, though an employer must offer to help pay for the employee’s return trip home, there is no requirement that the employer also pay for the costs of relocating the H-1B holder’s family or property.  Once a bona fide termination occurs, the H-1B employee is in unlawful status and therefore advised to return to his or her home country.  If a company has any questions about whether they complied with this requirement, they should consult their attorney.

Conclusion:

As detailed above, once an employer’s H-1B petitions are approved, it must be carefully monitored to comply with USCIS requirements.  A company’s attorney can alert the company of when USCIS notification is needed by consulting (1) immigration statutes, (2) Department of Labor (DOL) regulations, (3) case law, and (4) advisory memoranda.  Because of the complications that may arise, it is best for a company to err on the side of caution and immediately notify their attorney if they think that a change may be material.
The Law Offices of Shah Peerally has successfully handled numerous H1B cases including transfers. We will be glad to assist you with all your immigration needs.

The Law Offices of Shah Peerally practice exclusively in US immigration law and Canadian Immigration law (in collaboration with the Law Office of Massood Joomratty). The law firm is headquartered on 4510 Peralta Blvd, Ste 23, Fremont CA 94536. Ph 510 742 5887, email: info@peerallylaw.com Website: www.peerallylaw.com

The information contained in this article is provided for informational purposes only, and should not be construed as legal advice on any subject matter. No recipients of content from this article, clients or otherwise, should act or refrain from acting on the basis of any content included in the article without seeking the appropriate legal or other professional advice on the particular facts and circumstances at issue from an attorney licensed in the recipient’s state.  Shah Peerally is the managin

The EB-1 category grants an individual the “priority worker” status.  To qualify, the individual has to show that he or she is internationally renowned in a particular field, and that the individual will continue to work in that field upon arriving in the U.S.

Each year, the USCIS allocates approximately 40,000 visa numbers specifically for qualified EB-1 candidates; EB-1 candidates also share any visa numbers left over from the EB-4 and EB-5 preferences.  The USCIS grants individual priority according to the order that the petitions are filed.   

Requirements

Three categories of individuals qualify for EB-1 classification: (1) aliens of extraordinary ability; (2) outstanding professors and researchers; and (3) transferring executives and managers. 

Aliens of Extraordinary Ability:
The Immigration and Nationality Act (“INA”) lists three requirements for an individual of extraordinary ability:

1) The individual has extraordinary ability in the sciences, arts, education, business, or athletics which has been demonstrated by sustained national or international acclaim, and whose achievements have been recognized in the field through extensive documentation;
2) The individual seeks to enter the U.S. to continue work in the area extraordinary ability, and
3) The individual’s entry into the U.S. will substantially benefit prospectively the U.S. 

Establishing “Extraordinary Ability”
To establish an individual’s “extraordinary ability”, documentation is needed – a person’s opinion is insufficient.  A major, internationally recognized one-time achievement, such as a Nobel Peace prize, suffices. Otherwise, an EB-1 candidate can qualify that he or she has a career of acclaimed work by satisfying at least three of the following requirements:

1) Documentation of the individual’s receipt of lessor nationally or internationally prizes or awards for excellence in the field of endeavor;
2) Documentation of the individual’s membership in associations in the field for which classification is sought, which require outstanding achievements of their members, as judged by recognized national or international experts in their disciplines or fields;
3) Published material about the individual in professional or other major trade publications or major media, relating to the individual’s work in the field for which classification is sought.  Such evidence shall include the title, date, and author of the material, and any necessary translation;
4) Evidence of the individual’s participation, either individually or on a panel, as a judge of the work of others in the same or an allied field for which classification is sought;
5) Evidence of the individual’s original scientific, scholarly, artistic, or business-related contributions of major significance in the field;
6) Evidence of the individual’s authorship of scholarly articles in the field, in professional or major trade publications or other major media;
7) Evidence of the display of the individual’s work in the field at artistic exhibitions or showcases;
8) Evidence that the individual has performed in a leading or critical role for organizations or establishments that have a distinguished reputation;
9) Evidence that the individual has commanded a high salary or other significantly high remuneration for services, in relation to others in the field; or
10) Evidence of commercial successes in the performing arts, as shown by box office receipts or record, cassette, compact disc, or video sales.

It is important to remember that the EB-1 candidate’s documentation evidences sustained national or international acclaim – not merely a lengthy resume.  EB-1 candidates of extraordinary ability must continue to work in that area of expertise once he or she arrives in the U.S.  The requirement that the individual “substantially benefit” the U.S. is somewhat open-ended, but the prevailing belief is that if the individual continues to work in the individual’s field of expertise, then the U.S. will substantially benefit. 

Outstanding Professors and Researchers:
Academics may also qualify for EB-1 status if they establish the following requirements:

1) The individual is recognized internationally as outstanding in a specific academic area;
2) The individual has at least 3 years of experience in teaching or research in that area, and
3) The individual seeks to enter the U.S. –
• For a tenured position (or tenure-track position) within a university or institution of higher education to teach in the academic area,
• For a comparable position with a university or institution of higher education to conduct research in the area, or
• For a comparable position to conduct research in the area with a department, division, or institute of a private employer, if the department, division, or institute employs at least 3 persons full-time in research activities and has achieved documented accomplishments in an academic field. 

“Academic field” refers to a body of specialized knowledge taught at an accredited U.S. institution of higher learning.  Though the USCIS allows teaching or research to satisfy the required 3 years of experience, the USCIS stated research conducted to acquire a degree does not count. 

Academics applying for EB-1 status must also submit documentation that objectively establishes excellence in that particular academic area.  This can include articles published in international or nationally renowned peer-reviewed journals. 

Transferring Executives and Managers:
Finally, intracompany transferees may qualify if in the 3 years preceding the EB-1 petition, the individual has been employed as a multi-national manager or executive for at least 1 year by the same firm or any of the firm’s subsidiaries or affiliates. 

During that 1 year period, the individual must also have been employed as a multi-national manager, executive, or a position that shares the same qualities.  The USCIS will analyze the individual’s job functions to see if it includes duties such as:

1) Managing professionals, including power to dismiss personnel,
2) Discretion in establishing the company’s goals and policies,
3) Employment at a senior level in the company’s hierarchy. 

This is similar to the L-1’s requirement, except that the EB-1 classification does not require an individual to possess “specialized knowledge.” 

Filing Procedures

There is no Labor Certification Attestation required.  Though aliens of extraordinary ability may self-petition for EB-1 status, an employer must petition on behalf of “outstanding professors and researchers” and “transferring executives and managers.”  Finally, the petition must include documentation evidencing the individual’s renowned excellence. 

Some U.S. citizens and immigrants are facing extensive questioning, intrusive luggage searches, and lengthy delays each time they return to the United States after traveling abroad. These tips are intended for U.S. citizens, permanent residents, foreign students, and others lawfully living in the United States who may be experiencing such questioning and searches as a result of the government’s broad national security investigations at U.S. borders. Below is a compilation done by the Asian Law Caucus.

Travelling Tips

Treaty E- Visas
 
Overview
 
The E-visa category was created to encourage international commerce between the U.S. and foreign traders and investors.  An individual may qualify for an E-visa if the individual is a national of a country that has a commercial trade treaty with the U.S., and the individual is entering the U.S. to trade with or invest in a U.S. business.    
 
If the individual’s E-visa is approved, the USCIS grants the individual nonimmigrant status to remain in the U.S.  The investor’s spouse and children (under 21) are also allowed to accompany the investor.  The E-visa initially lasts 5 years, but the individual may apply for a 2-year extension of status.   Note that the USCIS does not limit the number of times an individual can renew an E-visa.  Therefore, an individual can remain indefinitely in the U.S. under E-1 or E-2 status.
 
What Type of Individual Qualifies for an E-Visa
 
Typically, an individual must be coming to the U.S. to engage in “executive” or “supervisory” duties.  Otherwise, the individual must have “special qualifications” that make the individual necessary to the company’s efficient operation.
 
The USCIS has stated that an individual’s job title is not dispositive of whether an individual is an executive or supervisor.  Instead, the USCIS engages in a holistic analysis to determine whether an individual is actually an executive or supervisor by considering multiple factors, including:

• The individual’s title and salary;
• The individual’s required duties, including the individual’s degree of decision making and the number of employees the individual supervises;
• Where the individual’s title or position is located in the company structure or hierarchy.
    
The USCIS applies a similar analysis to determine whether an individual has special qualifications that warrant an E-visa.  The USCIS considers multiple factors including:

• The individual’s title and salary;
• The individual’s specialized training and experience;
• The individual’s duties at the company, and whether these duties are essential for the company’s operation;
• Whether the individual’s skills are unique or highly specialized.
 
There are generally two types of E-visas:  E-1 for Treaty Traders, and E-2 for Treaty Investors. 
 
E-1 Treaty Trader Visa
 
This visa is for individuals who wish to enter the U.S. to engage in trade or to establish trade ties between U.S. companies and companies of the foreign national’s country.  The trade must already exist when the individual applies for an E-1 visa – i.e. there needs to be an actual contract.  Mere negotiations or preliminary discussions are insufficient.
 
Requirements
 
To qualify for an E-1 visa:
 
• The individual must be a national of a country that has a trade agreement or treaty with the United States;
• If the individual is in the U.S. on behalf of a foreign employer, that employer must also be a national of a treaty country.  If the individual’s employer is in the U.S., the employer must also maintain treaty trader or investor status.  Note that if the individual is employed by a company located in the U.S., at least 50% of company must be owned by nationals of a treaty country;
• The trading must be “substantial.”  “Substantial” refers to a constant pattern of transactions that evidences an active business, not necessarily transactions of large monetary value;   
• Trading can involve services, goods, or technology.  This is broadly interpreted and can include tangible goods, international banking, e-commerce transactions, and transportation;
• The trading must primarily be between the U.S. and the treaty country, which means at least half of the total trading activity.
 
E-2 Treaty Investor Visas

An individual can acquire an E-2 visa if the individual is entering the U.S. to invest in a continuing commercial enterprise.  Note that E-2 Treaty investors should be distinguished from EB-5 immigrant investors.  Unlike EB-5 visas that grant conditional residency, an E-2 only confers nonimmigrant status. 
 
Requirements
 
To qualify, the investor must establish the following: (1) the individual is a national of a treaty country; (2) the individual has a “substantial investment” or plans to substantially invest in a “real, continuing commercial enterprise”; and (3)the individual is coming to America to develop the investment.

• The investor must establish that the investment is funded by lawfully obtained capital;
• The investment must be an “at-risk” investment.  This means that the investment must be active, with the potential to produce a profit.   Therefore, the investment cannot be primarily a charitable organization, nor would a passive investment (such as merely purchasing a building) qualify.
• Though there is no minimum requirement for a “substantial investment,” the general rule is that the less the business is worth, the greater the percentage the investor must own.
  
Filing Procedures for E-Visas
 
An individual applying for either an E-1 or E-2 visa must submit a DS-156 Form and the accompanying DS-156E questionnaire to the American consular office of the treaty country - no prior INS approval is required.  Also, documents supporting the DS-156 Form should also be filed, including:

• Evidence of an established trade or investment, such as a business contract;
• Financial documents detailing the source of the individual’s funds, and what the individual plans to trade or invest in;
• Proof of an active, ongoing business such as lease or purchase agreements, or copies of a company’s articles of incorporation;
• A description of the individual’s employment position, including job title, salary, duties, experience, and training;
• A description of the trader or investor’s future business plans.

The Myth of “I’ll Save Money” – Why Should You Retain an Attorney?Why saving money now may cost you in the long run. It is a familiar, recurring scenario.  A company or individual facing an immigration issue must ask:  

“Should I hire an Immigration attorney?” After all, there are many methods to handle immigration issues, many which cost less than hiring an attorney.  In this article, two of the most popular methods will be examined: (1) self-Filing and (2) unlicensed immigration consultants.  The pros and cons of each option will be discussed.  We will then see not just “should” a company retain an attorney to handle their immigration cases, but more importantly, “why”.   

There are many questions an individual faces at this stage, but perhaps none bigger than whether he or she should retain an attorney.  The individual likely wants what anyone would – the most economical and efficient way of handling the immigration issue.   1.      Self-Filing 

If an individual takes a cursory glance at their case, he or she may be convinced that “I can do this.  I do not need to hire an attorney.”  This may especially be true of companies attempting to procure employment visas for their employees.   Can an individual or corporation research their own immigration issues and complete their own applications?  Yes, of course.  Therefore, why would anybody pay an attorney to handle their immigration case? 

A simple analogy helps here.  Every year, people must file tax returns.  Some people choose to study tax codes, or purchase tax software that allows them to file taxes by themselves.  However, many people choose to hire accountants to prepare and file their taxes.  Why?  These people realize that although they are hiring a professional to complete a task they could theoretically complete on their own, a professional would maximize a person’s chances of owing the least amount of taxes and receiving the largest return.  The tax codes are infamously intricate and difficult to navigate, so many people see accountants as a smart investment.  Although an individual could prepare and file taxes by his or her self, there is always a chance that the individual may miss an important deduction, or miscalculate their amount owed, and et cetera.  Similarly, although an individual could handle their own immigration matters, the individual subjects his or her self to the same potential pitfalls.  Additionally, other problems may arise such as:  

·         Time:  Many immigrant and nonimmigrant visas have yearly quotas.  Though a person can take the time to become thoroughly educated with the USCIS process, by the time he or she becomes familiar, there may be no more visas available!  A dedicated immigration attorney could expedite this process to insure that a company’s visa applications are timely and properly filed.   ·         Mistakes:  As previously mentioned, a company may save some money by completing and filing their own immigration cases, but there is always the risk of committing a mistake – such as missing a crucial element in an application.   

The company then faces two immediate problems.  One, the company will probably have to consult outside help, such as an attorney, to fix the mistake.  In such an event, the case becomes needlessly complicated because this problem could have been averted by hiring by retaining an attorney from the beginning.  This will also cost the company additional money to remedy the mistake, which defeats a company’s main goal of handling their immigration matters in-house.  Two, because of the mistake the company may have severely harmed its chances of timely receiving its visas – or even worse; the company may have completely lost its chance of receiving its needed visas.  Even if an attorney is retained during this stage, the attorney may only be able to offer limited relief if the company has unknowingly filed the wrong form, or if the company has missed the deadline.   These are only two possible problems; many more may potentially hamper a company’s immigration needs.  Therefore, although a company could complete and file their own immigration cases, it may be a wise investment to retain an attorney to ensure that all proper procedures are followed. 

2.      Unlicensed Consultants Alternatively, a company may consider hiring unlicensed consultants instead of an attorney.  The company realizes that it may be too much of a gamble to handle its own immigration cases, so it decides to hire a professional.  The question then becomes, “Why hire an attorney when I can simply hire an immigration consultant?”  

For simple jobs, unlicensed consultants are more than adequate.  A consultant can file a form I-90 requesting a green card renewal just as well as an attorney.  But of course, companies rarely ever have “simple” immigration issues.  Just as in real life, even the simplest thing can suddenly experience unexpected complications.  Some, but not all, unlicensed consultants may be able to handle unexpected problems that arise.  But if the unlicensed consultant cannot, then the unlicensed consultant may have to consult an immigration attorney for advice, which in turn, costs time and money.   This scenario illustrates the key difference between unlicensed consultants and immigration attorneys:  

An unlicensed consultant may seek advice regarding legal immigration issues from an attorney, but an attorney never seeks immigration advice from an unlicensed consultant regarding legal immigration issues.  The simple truth is, even the best immigration consultant cannot provide all the services and representation that an attorney can provide to a client.   For example:  despite a company’s timely filing of multiple visas, the USCIS has neither adjudicated the files, nor has the USCIS given any reason or rationale why the files are still pending.  With an unlicensed consultant, a company has very few, if any options.  However, an attorney could compose a writ of mandamus, and ask the court to compel the USCIS to adjudicate the company’s files.   

Analogously, an attorney may be invaluable if family immigration issues arise, or if the company needs an attorney to represent them in immigration court.  Again, a company may save money by signing with an unlicensed consultant, but the company will be limiting itself of its available options, and there is no guarantee the consultant can adequately handle all of the company’s needs.  When a consultant is unable to help the consultant’s client, the client then faces the same problems as if the client had decided to self-file.  This illustrates why a company does not necessarily save money by hiring a consultant instead of an attorney. 3.      Immigration Attorneys 

Therefore, after weighing all the pros and cons of each option, many companies opt to hire an immigration attorney to handle their cases.  Through experience, these companies realize that retaining an attorney makes good business sense because there are simply too many possible mistakes a company may make if they complete their applications themselves, and unlicensed consultants are inadequate for all of a company’s needs. Ultimately, what every company must decide is what is the most economical, efficient, and effective way to handle their immigration needs and concerns.  This article has already debunked the belief that it is always better for a company to handle immigration issues themselves, or to hire unlicensed consultants.  But aside from the reasons mentioned above, there are many other reasons why it would be in a company’s best interest to hire an attorney, including: 

·         Confidentiality:  Every lawyer is sworn to protect his client’s privacy and confidentiality.  Companies know that whatever they tell their lawyer is protected, and except for very limited circumstances, a lawyer cannot be compelled to reveal his client’s information to outside parties. ·         Professional, Ethical Service:  All attorneys must follow both the American Bar Association Rules of Professional Responsibility and the CA Code of Professional Responsibility.  This protects clients from unscrupulous lawyers, and it also guarantees that clients receive quality representation.   

·         Strenuous Certification Process:  Attorneys must successfully complete law school to attain their Juris Doctorate.  Then the attorney must pass the California Bar Exam, a 3-day test, to certify that they are competent in a variety of legal matters before he or she is allowed to practice.  The old maxim “you get what you pay for” certainly holds true in this case.  Dealing with the USCIS can become incredibly complicated, and this is why it is essential to have someone on your side that is intimately familiar with the way the USCISC operates.   Here at the Law Offices of Shah Peerally, we pride ourselves on providing our clients with an unparalleled level of personal attention and representation.  This is why we insist on conducting a consultation with every potential client.  There, we listen to the client’s story, and then we list possible options available to them, and the likelihood of success.  We realize that hiring an attorney is an investment, and we want to ensure that our clients are happy with their decision.  The immigration field is more than a job for us, it is a profession.  Please feel free to contact us at anytime.

Today, transnational corporation commonly have numerous subsidiaries, affiliates, and branches throughout the world.  Subsequently, companies may need to temporarily transfer a high-ranking or uniquely talented employee to an affiliate in another country to handle some specialized business.  The USCIS has created an immigration solution for these specific situations.  The L-1 classification allows foreign nationals employed outside of the U.S. to enter the U.S. and work for a qualifying subsidiary, affiliate, or etc.  There are two types of L-1 classifications available: (1) L-1A, for individuals employed in a managerial or executive capacity, and (2) L-1B, for individuals with specialized knowledge capacity. 

Generally, the USCIS initially grants an individual L-1 status for three years.  However, an individual’s L-1 status will initially last only one year if he or she is entering the U.S. to work for a start-up company.  Once in L-1 status, an individual can extend their status after the initial period expires.  Individuals in L-1A status can extend their status for up to seven years, while individuals in L-1B status can extend their status up to five years.  Note that since all employees are hired on an “at-will” basis, the L-1 U.S. employer is not required to retain the employee for the entire seven or five year period.  Finally, if the employer/employee relationship endures for the entire L-1 period, the individual must spend one full year outside of the U.S. before her or she is eligible to apply for a new period of L-1 status. 

Once granted L-1 status, an individual’s spouse and children are eligible for L-2 derivative status.  Individuals in L-2 status are not authorized to work unless they apply and receive an employment authorization. card. However, the USCIS allows individuals to attend a U.S. school without changing his or her immigration status.

Requirements

An L-1 candidate must provide the USCIS with (1) proof of employment with a qualifying U.S. company; (2) proof that the L-1 employer generates sufficient business to employ the candidate; and (3) evidence that the candidate will be engaged in a “managerial or executive capacity” or “specialized knowledge capacity.”  These three requirements are explored in further detail below.

Proof of Employment with a Qualifying Company

The L-1 candidate must be employed with the petitioning company’s affiliate, parent, or subsidiary for a continuous period of one-year within the three-years prior to filing the petition or entry into the U.S.  This employment must have been in either a managerial/executive capacity or specialized knowledge capacity.

The candidate then must submit the required supporting documentation about the petitioning employer:

• Evidence that the company abroad and the petitioning company are related.  The critical issue is whether either of the companies exercise control over the other company.  This is a relatively flexible requirement, as even a 50/50 joint venture qualifies;
• Detailed written description of the petitioning company’s business, including its history, facilities, resources, and organization;
• Description of the company’s employees along including job titles and duties;
• Evidence that the company will continue to do business abroad during the candidate’s U.S. employment; and
• Documents evidencing the company’s corporate organization and long-term financial viability.

Doing Business in the United States

The L-1 candidate must also include evidence that the petitioning company is engaged in sufficient business to employ the candidate, including:

• Detailed description of the company’s U.S business, including history, number of employees, locations, and any marketing materials.  This is especially important if the company is a start up business;
• Corporate documents such as financial statements, incorporation documents, and SEC reports;
• Evidence of assets such as corporate bank account statements;
• Copies of lease or purchase options for buildings or spaces;
• Detailed description of the company’s employees, including resumes, job titles, and job offer letters; and
• Name and title of officer who will sign forms.

Managerial or Specialized Knowledge Capacity

After the candidate establishes proof of employment with a qualifying U.S. company, he or she must submit documentation that the candidate qualifies for either an L-1A or L-1B classification.

The candidate qualifies for an L-1A classification if (1) he or she is employed in a “managerial” capacity, meaning that the candidate primarily supervises or controls the company’s day-to-day operations, or (2) he or she is employed in an “executive” capacity, meaning that the candidate makes the company’s overall business and policy decisions.

An L-1B classification may be appropriate if the candidate possesses “specialized knowledge” essential to the company’s business affairs.  This is a relatively broad classification as it can include specialized knowledge of a company’s machinery or operations, or if the individual has expert knowledge on a a company’s processes and organization. 

Additionally, L-1A and L-1B candidates may also include the following supporting documentation:

• Evidence of higher education, including degrees, diplomas, transcripts;
• Detailed resume evidencing the candidate’s continuous employment with the company for one-year within the three-years preceding the filing of the petition;
• Evidence that the candidate was employed in either a managerial/executive or specialized knowledge capacity abroad, and that the candidate will continue this employment in the U.S.;
• The candidate’s salary/compensation abroad and in the U.S.;
• Corporate organizational charts detailing where the candidate is employed in the corporate hierarchy;
• Copies of passports and any other supporting documentation.

Filing Procedures

To apply for L-1 status, the candidate must file an I-129 form with the USCIS, along with the supporting documentation listed above.  Note that individuals employed outside of the U.S. are advised to attain an L-1 visa before her or she begins employment with a U.S. affiliate.  This is because although an individual may be granted L-1 status, that does not necessarily mean an individual has an L-1 visa.  Therefore, though the individual may be allowed to stay in the U.S., he or she cannot travel until they get a visa at the appropriate consulate.  To avoid any such inconveniencies or legal problems, individuals should obtain a visa before beginning employment in the U.S.
The preparation of an L1 visa or any kind of visas  requires a good understanding of immigration laws and regulations. There are other important issues not covered in this article regarding L1 visas such as the petition to obtain a work permit for L2 dependents and L1 blankets.  One should consult a licensed and experienced immigration lawyer  before moving forward with any immigration case(s)

If you have any questions or concerns, you should contact an experienced immigration attorney for further details. Our office has prepared many similar applications, feel free to contact us on (510) 742 5887, should you need any additional information.