While most business people are intimately familiar with the B-1 (business visitor), or B-2 (tourist) visas which allows travel to the United States for a limited period of time and the H-1b visa which allows employees with particular skills to work within the United States if they meet certain criteria, the use of the L-1 Visa is far less common despite various significant advantages that its use provides.
The L-1 Visa allows a business person to be transferred to a subsidiary or "brother-sister" company within the United States and the related L-2 Visa allows that business person to bring his or her family with him or her. The essence of the L-1 Visa is the intra company transfer of a key employee into the United States to a subsidiary or otherwise related company connected to the foreign company. To qualify for the Visa, the key employee must have worked for the foreign company for one of the last three years prior to application for the Visa. This necessarily requires advance planning years before the Visa is applied for and that often discourages immigrants from selecting this method of visa application. However, when one considers the multi year test for the investment visa, or the constant deadlines of the B-2 Visa, the one year delay in using the L-1 may not seem so onerous.
A critical aspect of the use of this method to come into the United States is the correct structure of the foreign company which is transferring the person into the United States, thus the planning for use of the L-1 requires business structure analysis and implementation, often undertaken years before the application is made. However, if the right structure exists, use of the L-1 should be carefully considered as opposed to the B-1 visa, the investment visa or H1-B Visas.
ADVANTAGES AND DISADVANTAGES OF THE L-1 VISA
- Green cards through employment are divided into five preference categories. The first category, which includes L-1, does not require a Labor Certification certificate. (You need not prove there are no qualified Americans to take the job.)
- All such categories are subject to quota requirements. The time required for the first category normally is much faster than the others.
- One can travel in and out of the country on the L-1 Visa or remain in the United States continuously.
- You can be transferred and work legally for a United States company that is a branch, subsidiary, affiliate or joint venture partner of the company that already employs you outside of the United States.
- If you plan ahead, you can create both the foreign and United States Company to accomplish your business plans in addition to any INS goals you may have.
- While there are quotas for getting the green card that may derive from your L-1 status, there is no quota for your initial L-1 Visa, so you can get into the United States and start working while you also seek to get your green card.
- Visas are available for family (though they can not use them to work in the United States) to accompany the holder of the L-1.
- Visas are usually issued quickly, often a matter of mere weeks. Once you have your L-1 Visa, you can then seek to have it converted to a green card pursuant to the available quota for preferred workers.
Note that one does NOT automatically get a green card for merely getting an L-1 Visa. One simply is then eligible to seek a green card as a preferred worker via employment and the applicable quotas for the locale then apply.
There are disadvantages with the L-1 Visa, especially if one is seeking a green card as the main purpose. Visas can initially only be approved for up to three years. Extensions of two years at a time may be allowed but only up to a total of seven years. (If a manager. Persons with specialized knowledge only get extensions up to a total of five years.) Most important, you are restricted to working only for the United States employer who acted as your L-1 sponsor and the company must be a branch, subsidiary, joint venture partner or affiliate of the company that employed you outside the United States and during your stay in the United States that foreign company must remain in existence.
If one does not have the one million dollars or business plans for the ten employee investor visa, the L-1 may be a viable option. One can create either a foreign company or American company and link it to a joint venture in the two countries and manage same for a year and be eligible to come into the United States and possibly obtain a green card. There is no monetary or number of employee requirement, only the requirement for a viable company that will exist long enough to perhaps allow successful attainment of the green card.
The key is this: if you can plan a business or extend your existing foreign business so as to allow entry into a United States business venture in which you perform the same key tasks, and if you structure the two businesses correctly, you can work in the United States and hopefully make a good living as well. If you work for a company already that is willing to work with you to accomplish the same goal, it should be achievable.
The need for business planning is as vital as the need for INS planning. Creation of a business that is not viable or the creation of the structure connecting the two entities in the wrong way will not only waste money, but could destroy any chance for a green card or successful visa. Further, good international tax planning will be essential. Ideally, a successful international business will be created which will have a value above and beyond the mere L-1 Visa or the eventual green card. To achieve that, a team of professionals both in the tax, the legal structure AND the immigration requirements must be assembled and it must be recalled that this entire apparatus must be planned to be implemented at least a year before application for the Visa.
But if you are a business person or trader in any event, this may be the ideal vehicle to consider to allow you and your family to "come to America."