US Immigration Lawyers Guide to L1 Visa Executive Eligibility
In this guide, our US Immigration Lawyers look at the rules relating to executive jobs and the eligibility criteria for the L1 Visa.
If you need immigration advice on an L1 Visa application, our specialist L1 Visa Solicitors can guide you through the visa application process.
US L1 Visa Lawyer London
For US immigration advice contact OTS Solicitors. Appointments are available for phone, Zoom or Skype consultations or at our offices in London.
The L1 Visa
The L1 Visa is a US Work Visa but the visa is limited to existing employees of companies who need a visa to work in the US at their employer’s US-based subsidiary, branch, or parent company of their current non-US employer.
Not only does an existing employee need to transfer their employment to the US company, but the eligible work roles are limited to:
- Executives
- Managers
- Employees with ‘specialist knowledge’
Although three types of jobs could qualify you for an L1 Visa the visa is divided into two L1 categories:
- L1A Visa - for executives and managers
- L1B Visa - for employees with specialised knowledge
There are differences between the two visa categories. For example, the L1A Visa can last (through an extension application) for up to seven years while the L1B Visa lasts for up to five years. Also, with an L1A Visa as a manager or executive, you can apply for a Green Card whilst you can't do so with the L1B Visa. However, you can move from an L1B Visa to an L1A Visa and eventually gain a Green Card that way.
The differences between the L1A and B Visas mean it’s important to get US immigration legal advice to see if your job description qualifies you as an executive or manager rather than as an employee with ‘specialist knowledge’.
The definition of ‘executive’ for the L1 Visa
The first point L1 Visa Solicitors emphasise is that visa applicants need to be an executive or a manager – they don’t need to be both to qualify for the Work Visa.
Executives are defined under the rules. The fact that your company has called you an executive in your job title does not give you a ‘free pass’ to qualify as an executive for the L1 Visa. Likewise, if your employer has set the managerial or executive title at a high threshold you may still qualify for the L1A Visa despite your previous job title in the non-US company.
There is no hard and fast rule for the definition of an executive as every company is different. The L1 Visa rules allow you to apply for an L1 Visa, whatever the size of the US-based company.
Essentially your job must be to principally act as an executive rather than the executive part of your role only amounting to a small percentage of time spent on the job. For example, if 90% of your time is spent in research and development the L1B Visa may be a better fit for you. If, during your time in the US, your job moves to a true executive position you could then move from an L1B Visa to an L1A Visa.
Control and authority
If in doubt about a job role, USCIS officials will look at the control and authority to be wielded by the visa applicant. That doesn’t mean anyone who supervises an employee and has authority over other employees qualifies as an executive. The control and authority need to be more nuanced and relate to the running of the US company or a section of it. For example, does the executive guide and control the direction of the company or a section of it?
Whether your US-based company is large or small, a US immigration law firm should emphasise the importance of the visa applicant’s executive role when preparing the Work Visa application. In a large company, USCIS officials won't know how the visa applicant will fit into the executive structure. A flow chart may help explain their role in the executive function.
With a US start-up where the transferring executive will be setting up a US affiliate or branch, a USCIS caseworker may assume that the executive won't be fulfilling an executive role if there are few employees to control or supervise. That’s why it may be essential to outline the visa applicant's executive and supervisory role, their ability to make decisions on the future direction and growth of the company as well as their role in the supervision of any new employees. Any non-executive routine type of work must only be incidental rather than an essential element in the role.
If there is to be supervision of the executive role, the company must make it clear that the supervision will be conducted at a board or similar level to distinguish the executive role from that of a junior or mid-level manager.
USCIS guidance on executives
The USCIS guidance on what amounts to an executive job can be found in the USCIS government policy manual volume 2 Part 1 Chapter 6 - Key Concepts | USCIS.
Executive capacity is defined as:
‘An assignment within an organization in which the employee primarily:
- Directs the management of the organization or a major component or function of the organization;
- Establishes the goal and policies of the organization, component, or function;
- Exercises wide latitude in discretionary decisions; and
- Receives only general supervision or direction from higher-level executives, the board of directors, or stockholders of the organization
The Guidance clarifies that:
- All four criteria must be met for a visa applicant to qualify for an L1A Visa as an executive.
- The executive definition isn’t based on the number of employees the visa applicant supervises or will supervise in the US. However, supervision of staff is one aspect USCIS considers
- USCIS caseworkers are tasked with looking at supervision in the context of the reasonable needs of the organization and its size and stage of development
The USCIS Guidance confirms that job title alone isn’t sufficient. Our US Visa Lawyers in London can guide you on the amount of information and the best supporting paperwork that needs to be supplied to secure the petition and obtain the L1 Visa.
Company and cultural norms
When advising on L1A Visa eligibility and the executive role an experienced US Immigration Attorney will be alert to the cultural and national nuances in job titles. Some countries, such as England, Ireland or India, have different norms regarding the use of the executive job description. Also, in some industries and sectors, it is common practice for almost every non-shop floor worker to be described as an executive, such as a sales executive, HR executive etc. Our US Immigration Lawyers UK will explain the importance of cutting through the job description and can advise if the best option is to describe the visa applicant as a manager or a person with specialist knowledge. Alternatively, we can offer US immigration advice on other types of Work Visas or Business Visas.
Executive employment
In addition to the L1 Visa applicant needing to be employed in the US as either an executive or manager, the L1 Visa rules require the visa applicant to have been employed by a non-US company for at least one continuous year within the last three years before the employee’s intracompany transfer to the US company. The employee doesn’t need to have been working as an executive before their transfer to the US. For example, they may have been heavily involved in the research and development of new products before receiving a promotion to the executive level.
Our top US visa lawyers in London can guide your business or individual L1 Visa applicants through the L1 Visa intracompany transfer and application process.
US L1 Visa Lawyer London
For specialist US visa legal services and advice on L1 Visa applications contact OTS Solicitors. Appointments are available for phone, Zoom or Skype consultations or at our offices in London.
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