There are
a number of ways to enter the U.S. to remain here permanently.
However, most are slanted towards those who have
relatives here, or who are persons holding advanced
degrees, or are persons who control large amounts of
money. But what is one to do when one is a successful small businessman,
and one is from a country which does not allow the free
flow of capital?
Nationals of these countries are not eligible
for the Treaty Trader or Treaty Investor Visa (E-1 and
E-2), which can allow one who invests a substantial
amount (usually over US $100,000) in a company in the
U.S. to remain in the country indefinitely to manage
their investment.
These people must see if they can qualify for
the L-1 visa.
The
L-1, or Intracompany Transferee Visa is one of the
most frequently used Visas.
This visa allows foreign companies to transfer
certain managerial and executive employees to the
United States.
The transfer must be temporary, although the
nature of the job occupied need not be temporary.
The
language of the law pertaining to L-1s, as it currently
reads, is:
an
alien who, within three years preceding the time of
his application for admission into the United States,
has been employed continuously for six months by a firm
or corporation or other legal entity or an affiliate
or subsidiary thereof and who seeks to enter the United
States temporarily in order to continue to render his
services to the same employer or a subsidiary or affiliate
thereof in a capacity that is managerial, executive,
or involves specialized knowledge, and the alien spouse
and minor children of any such alien if accompanying
him or following to join him.
This
law was clearly intended to benefit large multinational
corporations, yet it can be used by much smaller organizations,
or even by entrepreneurs.
The key elements of a successful petition for
L-1 status are:
1)
Two existing companies, one in the U.S., and one abroad,
that are in a "qualifying relationship."
A qualifying relationship exists when both companies
are owner by the same person, or the companies are in
a parent-subsidiary relationship, for example.
2)
The employee applying for L-1 status must have worked
for the foreign company for at least six months of the
previous three years.
Note that time spent in the U.S., even if on
behalf of the related companies, does not count toward
the one year requirement.
3)
The employee must be entering the U.S. to perform work
in a managerial or executive capacity, or he must be
in a position which requires specialized knowledge about
the company or product.
The employee also must have performed in a managerial,
executive or specialized knowledge capacity during the
period prior to entry into the U.S.
4)
Both companies must continue to operate and do business
during the period of the transfer.
In
a case which involves a new U.S. business, special rules
and caveats apply.
Prior to application, the U.S. business must
start business by occupying a physical premises and
beginning to set up operations.
Although the L-1 visa is typically granted for
three years, in the case of a new U.S. business it is
only granted for one year.
After that one year the applicant must go back
and show what progress has been made by the company
in that year to gain the extension.
The
L-1 Visa holder is permitted dual intent.
That means one may have the intent to pursue
permanent residence while here in a nonimmigrant status-usually
that is not allowed.
An L-1 visa holder may qualify to apply for an
Immigrant Visa as a multinational executive or manager.
The approval of the Immigrant Visa would give
that person the opportunity to apply for his lawful
permanent residence and the lawful permanent residence
of his spouse and his children under the age of 21.
There
are limits to this visa, of course.
An executive or manager may hold L-1 status for
only seven years, and one using specialized knowledge
may only hold that status for five years.
Remember
that nothing in this informational article is intended
to be legal advice, and if you have questions about
the L-1 Visa and how it pertains to your individual
situation you should contact an qualified attorney to
schedule a consultation immediately. |
