L1-A Intercompany Transferee Visas 

Basic Requirements:

• The owner/employee must have been employed abroad for a period of one continuous year out of the last three years. 
  
  Any business that has been a going concern for at least one year qualifies. The executive or manager owner/employee must have been an owner/employee of this business in the same capacity for that one year. 
  
  Mere ownership does not suffice. However, if the owner/employee was employed for an aggregate amount of time equaling one year within the last three years, then the owner/employee qualifies.
• The company which the owner/employee worked for abroad must have the proper relationship to the U.S. company in a legally prescribed manner. 
  
  The general test whether the proper relation exists is whether there is "effective control." The question to ask is: " Does one entity or person control both companies by majority stock ownership?" If the answer is yes, then effective control exists. If a foreign business is %100 percent owned by one individual, and that individual desires to open an office in the U.S., he should own %51 or more of the U.S. office. He now has effective control over both offices. 
  
  There are many ways to establish effective control and the practitioner should not be discouraged by an impossible looking situation. For example: %15 could be effective control of both the U.S. and foreign offices if that %15 is the largest block of voting stock held by an individual or corporation. The answer to this criterion is creativity.
• It is required the company do business in the U.S. and the other country the whole period of the transfer. Doing business is defined as the regular, systematic and continuous provisions of services and/or goods. Until such time as the owner/transferee obtains permanent residence, it is required that both the U.S. company and the foreign company actually be in business. It is impossible for the foreign business owner/transferee to open an office in the U.S. and sell all of the assets of their business in their home country. Conversely, it is impossible to have a stagnate corporation in the U.S. with no business activity.
• The owner/employee who is transferred must have been employed abroad in a executive or managerial position.
• Proof must be submitted which establishes that the owner/transferee has been employed at least one year out of the last three years in an executive or managerial capacity.
• Executive means an owner/employee whose primary duties are to direct the management of an organization or a function of the organization, as well as establish organizational goals and policies, exercise a wide latitude of discretionary decision making, and receive only general supervision from the board of directors or shareholders.
• Manager means an owner/employee who directs the organization, a customarily recognized department or subdivision of the organization, or function of the organization, and who controls the work of other professionals, supervisory or managerial owner/employees, and who has authority to hire and fire as well as discretionary authority over the day-to-day operations.
• * The owner/employee must be coming to the U.S. company to fill an executive or managerial position.
• The owner/transferee must be coming to the U.S. to fill an executive or managerial position. Depending on the type of business involved, it is highly unlikely that a owner/transferee who actually performs menial labor, or non-executive or managerial duties, will qualify for the visa.
• The owner/transferee must be qualified for the position by virtue of his or her prior experience and education. 
  
  The owner/transferee should possess some educational background which establishes the fact that they qualify for a position as an executive or manager in that particular type of business. Clearly, a bachelors degree in business administration would qualify an owner/transferee for the L1-A visa in most instances. However, many years of experience in a particular business could be the equivalent of a bachelors degree and this possibility should be examined closely. The L1-A alien must intend to depart the U.S. after their authorized stay, although permanent residence may be pursued simultaneously. 
  
  The applicant for an L1-A visa no longer has to show a non-immigrant intent when applying or extending an L1-A visa. They can actively seek permanent residence in the U.S. while here on an L1-A. L1-A, executives and managers, are considered priority workers for the purpose of permanent residence in the U.S. A new employment-based immigrant category was created by the Immigration Act of 1990, whereby more than 40,000 resident visas per year can be issued to L1-A executives and mangers without the necessity of a labor certification. 
  
  In addition, L1-A aliens do not need to maintain a residence in their home country. The L1-A owner/employee need only to express his intent to return home at the end of his L1-A stay should they not wish to pursue an immigrant visa; or return home if their permanent resident visa is not available by the expiration of the L1-A.

The L1-A Visa as an investment tool for foreign business owners: "Start up Enterprises." 

Generally, if a business (a qualifying entity to foreign business entity) already exists in the U.S., the initial granted length of stay is three years. However, in the case of a "start up enterprise," the initial length of stay granted is one year. At the end of one year an extension can be filed requesting three more years upon the proper submission of evidence. While all L1-A visa applications require the same evidence, additional documentation is needed in order to qualify for an L1-A "start up enterprise." Generally, this is:

• Proof that there is a physical presence in the U.S. This can be a lease or a purchased building;
• A three year business plan, which includes proposed number of future owner/employees (if none at inception);
• The size of the U.S. investment (however, there is no fixed investment amount and the I.N.S. will review each submission on a case by case basis);
• A statement of a bank account in the U.S. with at least $20,000.00 U.S. dollars deposited (this is shown to prove that an owner operator business the owner/transferee's salary can be paid;
• Size and staffing of foreign company;
• If owner operated:
• Need for the transferee in the U.S. operation is not indefinite.
• The transferee's foreign business interests presents a strong reason for believing he or she will depart upon the expiration of the authorized stay.

Permanent Residence 

At any time the owner/employee can file for permanent residence under the priority workers category. As stated above, no labor certification is needed to prove that there is a shortage of U.S. workers to fill the position. In addition, it is not anticipated that this category will experience any real delay in priority dates in the near future. Of course, all qualifying family members are included in the granting of permanent residence. 

Conclusion 

The L1-A visa is an excellent tool for foreign business owner/employees who want to establish a business in the U.S. and possibly pursue resident status. From a practitioner's viewpoint, you are able to offer foreign clients the ability to invest in the U.S. with no minimum amount and obtain permanent residence for them, should they desire it, in a relatively short period of time.