Month: October 2023

The United States Citizenship and Immigration Services (USCIS) affirmed on October 20 via their Policy Alert (PA-2023-29), that a sole proprietorship cannot file an L-1 visa petition on behalf of its owner because the sole proprietorship does not exist as a distinct legal entity, separate from the owner. A sole proprietorship is a business in which an individual owns all the assets, owes all the liabilities, and operates the business in the individual’s personal capacity.

The L-1 intracompany transferee visa is a popular visa category utilized for the transfer of certain managerial, executive and specialized knowledge personnel from a foreign business to a related US business.

Existing USCIS policy provides that a sole proprietorship may not file an L-1 petition on behalf of its owner because there must be a separation between the employing entity and the beneficiary; a petition where the sole-proprietor owner and beneficiary are the same would be considered an impermissible self-petition. However, an L-1 can be filed by a sole proprietorship on behalf an eligible employee. For instance, an individual may be the sole proprietor of an entity abroad and also of one in the United States, and may transfer an eligible employee under the L-1A or L-1B classification to the US.

The Policy Alert further affirms the difference between a sole proprietorship and a self-incorporated petitioner (i.e., a corporation or a limited liability company with a single owner) in that the corporation or the single-member LLC is a separate and distinct legal entity from its owner, stockholder or member (unlike a sole preceptorship) and can therefore file an L-1 for that owner.

This article has been written by Zeenat Phophalia, Esq. Of Counsel, Davies & Associates, India Office.

Zeenat Phophalia is qualified to practice law in New York, United Kingdom and India. She practices in the area of U.S. immigration law with a focus on business immigration, and has represented corporate clients including large and medium sized companies and startups across sectors such as IT, consulting, consumer goods, manufacturing and telecommunications.

Looking for an US immigration lawyer? Request free consultation at Davies & Associates or find our closest location around the world.

How does the L 1 Blanket Visa Petition work?

An L-1 blanket petition enables certain overseas companies to transfer multiple employees to the United States on an L-1 visa, a nonimmigrant visa, under a single petition, without having to file individual L-1 petitions for each qualified employee.  All foreign entities that the US petitioning company seeks to include are listed in the blanket petition, backed by documentary evidence of the qualifying relationship with each such entity.  An approved blanket petition confirms that a qualifying relationship exists between the US entity and the foreign company seeking to transfer the employee. The L-1 blanket simplifies and streamlines the process for multinational companies who frequently seek to transfer their managers, executives or specialized knowledge workers to the US.  The Blanket L petition similarly does not guarantee that the employees will get the visa, nor the L1 Visa validity.

An L1 Blanket petition is filed with the USCIS (United States Citizenship and Immigration Services) using Form I-129.  Once it is approved, the eligible employee can apply for an L-1A or L-1B visa by scheduling and attending the visa interview at a US consulate.  Among the documents the employee will have to carry to the interview are L-1 Blanket petition approval, I-29S Form, Letter of Support detailing the transfer and nature of the US role and evidence of employment abroad. L-1 Blanket petitions will have an initial validity period of up to three years once approved.

Employer Eligibility Criteria – Commercial trade?

There are requirements that a petitioner and the qualifying foreign entities must meet to be eligible and qualified for an L1 blanket petition:

• The petitioner and each of the entities included are engaged in commercial trade or services;
• The petitioner has an office in the United States that has been doing business for 1 year or more;
• The petitioner has three or more domestic and foreign branches, subsidiaries, or affiliates; and
• The petitioner and the other qualifying organizations have obtained approval of petitions for at least 10 “L” managers, executives, or specialized knowledge workers during the previous 12 months; or have U.S. subsidiaries or affiliates with combined annual sales of at least $25 million, or have a U.S. workforce of at least 1,000 employees.

Employee Eligibility Criteria

Whether the foreign professional employees are applying for an individual visa or under a blanket petition, they must still meet all the employee-related requirements individually.  The foreign national employees applying under an approved blanket petition must establish that he or she was employed abroad for 1 of the 3 years (prior to applying to the consulate) in either a managerial, executive or specialized knowledge category and will be employed in the US in either of these three categories.

If you are applying for an L1A Visa, you must prove managerial or executive position in the company. The specialized knowledge employee can stay in the USA for up to five years. He/she should be ready to enter the United States in an executive or managerial capacity involving specialized knowledge. To prove managerial or executive capacity, the petitioning employer must meet the following requirements in the blanket petitions

1. The beneficiary employee was employed for at least one year out of the previous 3 years

On the other hand, the L1B Visa is a Specialized Knowledge Professional. The employees that have worked in a position requiring specialized knowledge will qualify for this visa. However, the future position of this employee must also be one in the Specialized Knowledge Professionals. The employer has to prove the employees possess specialized knowledge, and that the employee’s ability will be sufficient to contribute significantly in the role.

We discuss these criteria in L1 Visa USA page here at Davies & Associates.

Blanket Petition Advantages

There are several advantages of having an L-1 blanket petition: It saves you time as it streamlines the L-1 Visa application process, so you can transfer multiple employees quickly and efficiently;

• It saves you money in the long run compared to filing individual applications;
• It gives you flexibility in transferring several foreign employees to the U.S. office, allowing you ease in meeting and accomplishing other business needs and goals;
• It gives you the chance to plan future transfers without the uncertainty that comes with individual visa applications for each transferring employee.

L-1 Blanket Validity

The L-1 blanket approval is valid initially for 3 years It can be extended indefinitely, but if the company doesn’t apply for an extension or if a renewal application is denied, the company must wait 3 years to apply for a new blanket petition.

Take note that a blanket petition approval does not guarantee that the employee will be granted an L-1A or L-1B visa as the employee will still have to prove his or her eligibility under the L regulations.

Professional employees may also transfer between related foreign entities that are denoted on the Blanket L Approval notice. They may transfer employees with explicit approval notice provided the transferred employee will have the same job duties.

Denial of L-1 Blanket Visa

Like L-1 visas under individual petitions, L-1 blanket visas can be denied due to various factors such as inadequate documentation, failure to prove managerial, executive or specialized knowledge duties, etc.  While a USCIS denial of an individual L-1 visa petition may be appealed, denials of an L-1 visa blanket applications by the consulate are not reviewable.   

L1 Individual Petition vs. Blanket Petition Approval notice

With an L-1 Transfer Visa, the company must file a petition every time they want to transfer an employee with the USCIS. On the other hand, with an L-1 blanket visa, the company can transfer multiple employees under just one petition. The blanket visa makes the process easier and less expensive by eliminating the need to file multiple petitions for each qualified employee. It is considered a rather flexible way to transfer employees to the USA.

FAQs

Is the definition for managerial, executive, and specialized knowledge employees the same for L-1 blanket visa petitions and individual petitions?

Yes, the definitions are still the same regardless if you’re applying under a blanket petition or an individual petition.

Can I bring my dependents with me to the U.S. on my L-1 visa?

Yes, the visa issued to your spouse and unmarried children under the age of 21 is the L-2 visa. Their period of stay would be for the same duration as yours. Moreover, your spouse can work in the U.S. without applying separately for an Employee Authorization Document (EAD) work authorization

Can I change or transfer jobs on an L-1 Visa?

You can change or transfer jobs on an L-1 Visa but only to a location with the same company or to a qualifying/related company in the U.S. The USCIS must be notified of any significant changes to your employment, which is usually done by way of an L-1 amended petition

Are there benefits to an L-1 blanket visa petition?

An L-1 blanket visa petition streamlines the transfer of employees from several months to a matter of days and weeks. It also eliminates the need to file individual petitions for each transferring employee.

What privileges can I enjoy on my L-1 Visa?

On your L-1 visa, you can work legally in the U.S. or stay until your visa expires, and travel freely in and out of the country. You can also avail of dependent visas for your spouse and unmarried children, or potentially apply for a green card through employment

Looking for an US immigration lawyer? Request free consultation at Davies & Associates or find our closest location around the world.

The L-1 visa is utilized for the intracompany transfer of qualified managerial and executive personnel and specialized knowledge workers from an overseas company to a related company in the United States. The key criteria of an L-1 are: (1) existence of a qualifying relationship between the foreign and US entity (the US entity should be a parent, subsidiary, affiliate or a branch of the foreign company); (2) the prospective L-1 employee should have worked in a managerial, executive or specialized knowledge capacity for the foreign employer for one continuous year in the three years preceding the L-1 petition filing; and (3) the transfer of the employee to the US should be for a similar managerial, executive or specialized knowledge position.

In the event that after the approval of an L-1 petition, there are significant changes pertaining to the qualifying relationship of the entities or the nature of the employee’s role in the US, an L-1 amended petition is required. The L-1 regulations mandate an amendment filing with the USCIS to reflect changes in approved relationships, additional qualifying organizations under a blanket petition or change in capacity of employment (i.e., from a specialized knowledge position to a managerial position). Also, any information which would affect the employee’s eligibility is likely to be considered material, warranting an amendment.

Some changes can be clearly considered as material. For example, if an L-1B employed as an Equipment Engineer, who primarily works on sophisticated and complex machinery is promoted to the position of a Senior Director where his main duties involve managing professional staff, such change would require an amendment. Similarly, changes in the ownership and control of the US petitioner after adjudication would typically require an amendment as these changes may constitute a material change in circumstances or represent new information.

More often than the above scenarios, situations come up where the L-1 employee would have to work primarily out of a different geographic location from what was listed on the petition. There is no clear-cut answer or specific guidance on this. Generally, a temporary change in work location with all other terms of employment remaining unchanged, is not considered material, requiring an amendment. But for example, if the change is long term and let’s say from one state to another, the safe approach would be to file an amendment. Employers should take into account the increased instances of unannounced site visits by USCIS officers in the recent years and the weigh the risk of a failed site inspection and a possible petition revocation.

This article has been written by Zeenat Phophalia, Esq. Of Counsel, Davies & Associates, India Office.

Zeenat Phophalia is qualified to practice law in New York, United Kingdom and India. She practices in the area of U.S. immigration law with a focus on business immigration, and has represented corporate clients including large and medium sized companies and startups across sectors such as IT, consulting, consumer goods, manufacturing and telecommunications.

Looking for an US immigration lawyer? Request free consultation at Davies & Associates or find our closest location around the world.