Temporary Intracompany Transferees who Possess Specialized Knowledge: Obtaining Your L-1B Visa
March 18, 2010
In our globalized economy, companies that wish to compete on the world stage require a workforce that can be relocated to meet market demand on short notice. Our age is also an era of specialization where specialized skills are valued over general abilities. When an international company needs the services of a specialist and cannot train a U.S. worker to perform that function without an unreasonable amount of expense, they must turn to workers from outside of the U.S. that are able to perform short term, specialized functions. The L-1B visa for foreign workers with specialized knowledge is designed to allow for the flexibility of workforce that the new global market demands.The Fundamentals of the L-1B Visa
In summary, the L-1B visa allows a company with a foreign parent, branch or affiliate to send workers who have worked for that company for at least one continuous year within the last three years, and who possess specialized knowledge of company processes and procedures, to work in the United States on a temporary basis. The employee is expected to continue to work using the specialized knowledge and be stationed with the U.S. parent, affiliate or branch. This visa may be initially approved for a three year period, then renewed for another two years for a total of five years of eligibility.Advantages of the L-1B Visa for Employers
The L-1B visa provides numerous advantages to employers. First, unlike the H-1B process, L-1B visas do not require a labor certification and accompanying attestations to the Department of Labor. Additionally, the employee need have only worked for the petitioning company abroad full time for one of the past three years. The employee may even be a majority share holder of sole proprietor of the company. In relation to payment, the petition only needs to show that the employee will not become a public charge. The fundamental point to prove is that the foreign company will have control over the employee, salaried or not.
Regarding the petitioning company, a majority in the ownership of stock in both the foreign and U.S. company will prove the existence of a common parent company. Qualifying joint ventures may be shown by a majority of shares held in common, but in certain situations, a joint venture with less than a majority of common shareholders may qualify if the element of control over the worker is satisfied. Proprietorships and affiliates will also qualify under certain circumstances.
Advantages for Foreign Nationals There are several advantages to the L-1B visa for foreign national over other forms of temporary work visa. Foremost is that this visa allows for dual intent. This means that the worker may have a petition for permanent residency filed on their behalf while present in the United States on the L-1B visa. Additionally, the foreign national’s spouse may legally work in the United States while the L-1B visa beneficiary is present. Finally, the L-1B visa may be adjudicated at the port of entry, meaning the waiting process of the H-1B visa may be avoided.Proving Specialized Knowledge
A worker with specialized knowledge must be more than a worker who simply possesses trained skills. The knowledge must be of company goods, product delivery, company studies, proprietary tools, methods or company administration procedures. Proving specialized knowledge can be achieved by showing the four characteristics of specialized knowledge as outlined by the USCIS. Specifically, the employee must (1) possess knowledge that is important to the employer’s viability in the market place, (2) is distinctively qualified to add to the U.S. employer’s knowledge of foreign operating conditions, (3) has been key to the company’s business overseas, and (4) has expertise that can only be gained through extensive previous experience with the company.Avoiding the Problem of Job Shops
A central tenant of the L-1B program is that the multinational entity has control over the work functions of the foreign national. For this purpose the relevant regulations demand that the worker be placed principally at the petitioner’s location. The government wishes to avoid the situation where workers are brought over by the bus load and sent to work as contractors for unrelated third party companies. The law in this regard has been fairly consistent in recent years. However, with the renewed focus on control in the H-1B context placed upon that visa by the recent Neufield memo, it is yet to be seen whether the L-1B standards will be adjusted.Blanket L-1 Petitions
For very large corporations who are established, have three or more offices in the U.S., have large volumes of sales or have received ten or more L-1 approvals in the last 12 months may file for a blanket L-1 Petition. Under this procedure the company establishes that it qualifies as a qualifying organization in one general blanket petition. Then all that is needed for the individual workers is to prove the worker’s credentials on a case by case basis.Consult a Shihab Attorney Regarding Your Potential L-1B Visa
As in all immigration matters, the facts and needs of each client and case are determinative of the visa solution. If you have questions about an immigration visa or green card matter, and/or you need help in an immigration process, please contact our immigration attorneys or call The Law Firm of Shihab & Associates Co., LPA at the nearest office close to you to consult with an attorney. Our law firm handles various matters including Green Cards and Permanent Residence, family immigration, immigrant visas, non-immigrant visas, employment visas and H1B visas, Investor Visas, PERM applications, and many more. Please contact us and experience how our law firm can assist you in your immigration matters. Whether you are an employer, an employee or a family member, The Law Firm of Shihab & Associates, Co., LPA has competent, responsive and innovative lawyers who can make your immigration experience pleasant and seamless.