The L-1 visa is an intra-company transfer visa for those coming to work in the United States for an affiliate or subsidiary related to the company they work for abroad. The L-1 is a petition-based visa submitted to the USCIS for approval. An employer may qualify for a Blanket L by registering itself and its subsidiaries, affiliates, branches and other qualifying organizations with the USCIS.
There are two types of L-1 visas: (1) L-1A visas are for executives and managers of a company, and they are allowed to remain in the United States for up to seven years; (2) L-1B visas are for specialized knowledge employees, and they can remain in the United States for up to five years.
To qualify for either type of L-1 visa, an applicant must have been continuously employed abroad for one year out of the last three years prior to the application for an L visa with a parent, affiliate or subsidiary of the U.S. employer. Also, both the U.S. employer and the foreign company must have common majority ownership, or, where there is less than majority ownership, common control by the same person or entity.
If the L-1 principal and/or any of his dependents apply for a green card, they can still retain and extend their L status while the green card application is pending. Within the employment-based green card categories is one known as the EB-1 Multinational Manager/Executive category, which is very similar to the L-1A visa status. An application for this green card requires all of the same evidence as the L-1A visa. The major difference between the two statuses is that the United States company must have been in existence for at least a year prior to the green card application.
Dependents of the L-1 visa holder can receive derivative L-2 status. L-2 spouses are permitted to work if they apply for and receive an approval of an application for employment authorization. However, L-2 children are not authorized to work and are ineligible for an employment authorization document.
L-1B visas are for specialized knowledge employees, and they can remain in the United States for up to five years. L-1B visa applicants, like their H-1B counterparts, must also complete the labor certification process.
LABOR CERTIFICATION
The labor certification process requires an employer to conduct a test of the labor market in the geographic area of intended permanent employment of a foreign national. If the employer is unable to identify qualified U.S. workers (defined as U.S. citizens or green card holders), the employer applies to the U.S. Department of Labor (DOL) to request certification of a labor shortage in the job position for which the test of the labor market was conducted. The DOL processes labor certification in about nine to 12 months. If the labor certification is granted, i.e., the DOL certifies a shortage in the geographic area of intended employment, the employer is then permitted to file an immigrant visa petition (I-140) for the foreign national. In employment-based immigration, the availability of green cards is determined by the skill and education levels of the required job position. The ability to file a green card application depends on the foreign national's country of origin, skill/education level, and the date on which the labor certification was filed with the DOL, this is also known as the "priority date."
State Department Visa Bulletin
The United States Department of State, through the Bureau of Consular Affairs, publishes the monthly "Visa Bulletin." The Visa Bulletin lists the availability of immigrant visa numbers during the month of publication, and is intended as a guide for those who need to know if visas are immediately available for individuals in particular categories.
Section 201 of the Immigration and Nationality Act (INA) establishes limits on family- and employment-based immigration. While there is no limit on the number of spouses and minor children of U.S. citizens, there is an annual limit on the other categories of family based immigrants of 226,000. Section 202 of the Immigration and Nationality Act states that the total number of visas that may be issued, known as charged, to specific countries may not exceed seven percent of the total number of family or employment based immigration on a worldwide basis. It is this limit on the number of visas that may be received by a country's nationals that creates the visa backlogs for some countries.
The Visa Bulletin indicates the availability of visas for family and employment-based preference categories, and separately lists countries that may have exceeded their allocation of visas. Countries that have exceeded their allocation of visas are "oversubscribed" and individuals from those countries must wait before a visa can be issued.
If a visa category is "current" then visas are immediately available for issuance by the consulate, and tables on the Visa Bulletin indicate this fact with a "C" under the appropriate chargeability area. If a category is oversubscribed, tables on the Visa Bulletin indicate this fact with a date, such as "22SEP02" under the appropriate chargeability area. When a category is oversubscribed, only individuals with a "priority date" earlier than the date listed on the Visa Bulletin may be issued visas. The priority date is the date on which USCIS received the application, either an I-130 application for an foreign national relative or an I-140 application for an immigrant worker.
A priority date is assigned when an individual, who is qualified for the category of immigration they request, files a complete application. Individuals whose priority date is after the one listed in the tables must wait until their priority date is included in a table published in the monthly Visa Bulletin. Contrary to what one might believe, priority dates do not always advance one month at a time, and depending upon the number of applications filed around the time of an individual's application. A surge in applications for a particular chargeability area at the time of filing could lead to priority dates advancing only one week per month. Similarly, a sharp drop in applications for a particular chargeability area when the application was filed might result in priority dates that advance months at a time.
To schedule an initial consultation with a Memphis Immigration attorney, call (901) 692-5732 or with a New York City Immigration Attorney, call (646) 380-0474 or contact Witty Law Group, PLLC.
