A visa widely used by Latin Americans is the L-1 visa. This visa allows the employee to transfer from a foreign company to an affiliate of the foreign company in the United States in a managerial/executive or specialized knowledge position.
The requirements for this visa are that the prospective employee must have been employed abroad by a subsidiary, affiliate, subsidiary, or branch of the petitioning company in the United States for a period of one continuous year during the three years immediately preceding the date of the petition. The position should also have been managerial/executive or specialized knowledge.
What is important in this visa is to determine whether the relationship between the foreign and U.S. incorporated companies qualifies to petition for an employee under the L-1. It is not necessary for the companies to be in the same industry or sector; what is essential is that there is effective control of one over the other. Among the factors that can help establish whether the relationship between the companies qualifies for the filing of an L-1 visa are:
- Majority of shares in both companies held by the same person (natural or legal)
- Same name
- Sharing or transferring personnel from one company to another on a regular basis
- Directors in common
- Sharing technological or financial resources
- Company size and recognition, among others.
Immigration normally adjudicates this status within two to three months (although it can take longer due to the persistent and continuous workload). The Premium Process can be requested, which for a higher fee offers a response within 15 calendar days. After approval, the employee must go to the U.S. consulate in his or her country to have his or her L-1 visa stamped in his or her passport.
If the employee is in the United States under a valid immigration status other than L-1, a change of status must be filed in conjunction with the employer’s L-1 petition. After approval of both, the employee must have his or her visa stamped at the U.S. consulate in his or her home country.
The L-1 visa is generally approved for an initial period of 3 years, unless the U.S. company is considered a start-up company, in which case the L-1 visa will be issued for a period of one year. The L-1A (managerial/executive) visa can be extended for up to 7 years; the L-1B (specialized knowledge) visa can be extended for a total period of five years.
The employer is not required to retain the employee for the seven or five years. The employer/employee contractual relationship is free and may be terminated at any time at the will of either party or as stipulated in the private contract between both parties. If the contractual relationship ends, the L-1 visa also ends. But if the contractual relationship lasts for seven to five years, the employee must remain outside the U.S. for one year before being eligible to apply for a new L-1 visa.
The L-1 individual’s dependents are his or her spouse and minor children, who will have an L-2 visa, which will allow them to study in the United States without having to change their status to that of a student. It also allows the L-2 (spouse) to work in the United States. Consult with an immigration attorney for legal advice on your particular case.
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