Overview of L1A New Office Petitions for Managers and Executives07 Aug 2017
The L1A intracompany transferee classification is designed to allow a qualifying multinational company to transfer a foreign national executive or manager to a related entity in the United States. For an L1A petition, the employer typically must demonstrate to the U.S. Citizenship and Immigration Services (USCIS) that the foreign national will be working as a manager or executive immediately upon being transferred to the U.S. entity. If the U.S. petitioning employer has established a new office, however, there are special rules in place to account for the fact that the U.S. office likely does not yet have the infrastructure in place to truly support a manager or executive position.
New Office Requirements for L1A Personnel
If the U.S. office has been doing business for less than one year, there are three criteria that must be met for an L1A new office petition to be approved. (1) The U.S. petitioner must have secured sufficient physical premises to house the new office; (2) the foreign national worker being transferred to the U.S. must have worked for a related entity abroad as a manager or executive for at least one year within the past three years; and (3) the intended U.S. office will support an executive or managerial position within one year of approval of the petition.
There are also special rules for new office petitions filed on behalf of L1B workers who possess specialized knowledge. This, however, goes beyond the scope of this MurthyDotCom article.
Sufficient Physical Premises
The U.S. company must provide evidence, at the time of filing, that it has secured sufficient space to support its U.S. operations, which includes adequate room to house all employees the company proposes to hire within one year of the L1A petition’s approval. Generally, this requires the submission of a signed lease or ownership documentation that indicates the total square footage of the premises.
Employed in an Executive or Managerial Capacity
The L1A employee must have been employed by the foreign company in a managerial or executive position for one continuous year in the three years preceding the filing of the new office petition. An executive is an employee who is primarily responsible for directing the management of the organization, department, subdivision, or component of the company. A manager is an employee who has supervisory responsibilities over professional or managerial employees or manages an essential function within the organization. A detailed job description, along with pay stubs for the employment abroad, or other similar evidence of the employment abroad, can be submitted as evidence that this requirement has been met.
Support an Executive or Managerial Position Within One Year
For an L1A new office petition to be approvable, the U.S. entity must demonstrate that it will be able to support an executive or managerial position within a year. In other words, the new office must grow to a sufficient size within the first year of operations that the foreign employee will be relieved from performing the hands-on, day-to-day functions of the company and instead will act in primarily a managerial or executive capacity. To meet this requirement, specific information must be submitted. These are:
- The proposed nature of the office describing the scope of the entity, its organizational structure, and its financial goals
- The size of the U.S. investment and the financial ability of the foreign entity to pay the employee and begin doing business in the United States
- The organizational structure of the foreign entity
A business plan that details the proposed staffing levels, business benchmarks, and timetables over the course of the first year of operations may be submitted to demonstrate how the new office will be able to support the manager or executive within one year. In addition, documentation showing the size of the foreign company’s investment in the U.S. entity, as well as a copy of the foreign company’s organizational chart showing its hierarchy and staffing levels, also may be submitted.
New Office Extension Petitions
A new office L1A may only be approved for one year. Prior to the conclusion of the one-year period, an extension may be filed, which must include evidence that the new office has grown to a size that is sufficient to support a managerial or executive-level position.
Recent Adjudication Trends – Investment in U.S. Entity
Based on L-1 new office petitions filed by the Murthy Law Firm in recent months, it seems that the USCIS is paying close attention to investment in the U.S. office by the foreign entity. The USCIS is now routinely requesting evidence that the foreign company has actually wired or transferred its capital contribution to start the U.S. entity’s operations. The investment typically should be consistent with the capital contribution indicated on the business plan.
The L1A new office petition process can be challenging, both logistically and from an immigration law perspective. It is important to thoroughly document the petition, and clearly explain to the USCIS how the U.S. operations will grow to a point where the need for a manager or executive can be justified.
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