Category: L1 Visa

Serbia L1 Visa

L-1A VISA FOR AN EXECUTIVE FROM SERBIA

US Immigration Advisor

The Serbian company recently set up a US affiliate to expand operations in the US. The US affiliate then filed the new office L-1A petition for the executive. With a new office petition, the intracompany transferee gets one year of authorized stay to jumpstart the operations of the US company.

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https://www.usimmigrationadvisor.com/l1-visas.html

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

This article has been written by Verdie J. Atienza, Esq., Senior Immigration Attorney, Head of E-2 and L-1 Visas Practice Team at Davies & Associates, New York Office.

Verdie J. Atienza is a Senior Attorney in charge of the firm’s L-1 and E-2 visa practice. He is a dual qualified lawyer in New York and in the Philippines and is qualified to practice immigration law in any state in the United States. 

 

Extension of L2 status for the spouse and child of an L1 Executive

US Immigration Advisor

Did you know that USCIS used to extend courtesy premium processing for the extension of status applications of dependents and applications for Employment Authorization Document concurrently filed with Form I-129? During the Trump administration, USCIS stopped extending courtesy premium processing for the applications of the dependents and this resulted in lengthy processing delays. Since January 25, 2023, USCIS resumed its practice of adjudicating L-2 applications for requests to extend status at the same time as the principal’s Form I-129 petition. This is based on a settlement agreement in Edakunni v. Mayorkas, a case pending in federal district court in Washington State. The change will be in effect for two years after the date of the settlement.

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

This article has been written by Verdie J. Atienza, Esq., Senior Immigration Attorney, Head of E-2 and L-1 Visas Practice Team at Davies & Associates, New York Office.

Verdie J. Atienza is a Senior Attorney in charge of the firm’s L-1 and E-2 visa practice. He is a dual qualified lawyer in New York and in the Philippines and is qualified to practice immigration law in any state in the United States. 

 

The H-4 EAD as a Work Permit – What you Need to Know

US Immigration Advisor

U.S. employers use H-1B visas to employ foreign nationals in the U.S. in certain specialty occupations such as engineers, doctors, architects, software developers and so on. Dependents of an H-1B holder can accompany the H-1B worker to the U.S. on a H-4 visa. Under certain circumstances, spouses on a H-4 visa are permitted to work and often times, the eligible H-4 spouse may already have another employment visa such as the H1B Visa or L-1 and is faced with the question of whether to opt for the H4 work authorization (H-4 EAD) or H-1B Visa or L1 Visa. There is no definitive answer as to which work visa option is better since it depends largely on the individual’s specific circumstances. This article helps understand some of the requirements and nuances of the H4 EAD.

Eligibility and Advantages

An H-4 spouse may be eligible for an H-4 EAD only if: (i) the H–1B worker is the beneficiary of an approved I-140 petition (Immigrant Petition for Alien Worker); or (ii) The H-1B worker has extended H-1B status beyond six years based on the American Competitiveness in the Twenty-First Century Act (AC21). Under AC21, H-1B extension can be granted if the H-1B spouse has a labor certification or Form I-140 which is filed at least 365 days prior to the expiration of the sixth year limit of the H-1B, and remains pending (either labor certification or Form I-140 must not have been withdrawn, denied, or revoked).

Also, in order to be eligible for the EAD, the H4 spouse is required to maintain lawful status. Since the H-4 status is tied to the H-1B, it is essential that the H1B worker maintains lawful status as well. To engage in unlawful employment for example would tantamount to a violation of both H-1B as well as H-4 status.

Procedure

Eligible spouses as stated above can file Form I-765 along with requisite and supporting documentation to apply for the H-4 EAD. Processing of the application by the government takes up to 90 days; and the applicant can start working upon receipt of the EAD card. H-4 EAD allows unrestricted employment including self-employment and running one’s own business.

Eligible spouses as stated above can file Form I-765 along with requisite and supporting documentation to apply for the H-4 EAD. Processing of the application by the government takes up to 90 days; and the applicant can start working upon receipt of the EAD card. H-4 EAD allows unrestricted employment including self-employment and running one’s own business.

What are the advantages of an H-4 EAD?

Lower cost: The cost of applying for an H-4 EAD, in comparison with an H-1B is significantly lower. The government filing fee for H-4 EAD (Form I-765) is $410 whereas that for a H-1B is much higher.

No annual cap: Unlike the H-1B visa which comes with an annual quota (H-1B regular cap and H-1B master’s cap of 65,000 and 20,000 respectively), there is no quota or annual cap set for H-4 EADs.

No minimum wage requirement: H-4 EAD does not have a prevailing wage determination as in mandated under the H-1B program.

Unrestricted employment: The H-4 EAD comes with no restrictions on the nature of employment- unlike H-1B where an individual must be employed in certain ‘specialty occupations’ only. Employment on H-4 EAD can be full- time, part-time and the individual can be employed by multiple employers. Also, important to note here is that a H-4 EAD holder can work for an employer as well as run his or her own business.

More flexibility: H-4 EAD allows more flexibility in taking unpaid leave of absence or stopping employment, for example, between projects.

Less documentation: The documentation required in a H-4 EAD application is considerably less voluminous in comparison to what is required in an H-1B or L-1 application.

What are the Disadvantages of an H-4 EAD?

No Portability: Unlike the H-1B which provides portability meaning that an H-1B worker may begin working for a new H-1B employer as soon as the new employer files a petition, the H-4 EAD does not have any such provision. An individual can continue to work in the U.S. while his or her H-1B extension or transfer is pending even after the current H1B has expired as long as the H-1B extension or transfer petition is filed in a timely manner. In the case of H-1B extensions, a pending H-1B allows employment for up to 240 days past the expiration date of the current H-1B term. On the other hand, the H-4 EAD must be valid at all times without any breaks or gaps even if an H-4 EAD extension is pending. This requirement of maintaining continuous validity of H-4 EAD makes it difficult to ensure uninterrupted employment, especially since the H-4 EAD is linked to the spouse’s H-1B.

H-4 EAD tied to H-1B status: An H-1B worker is not dependent on his or her spouse to provide status and work authorization as H-4 spouses are. Therefore, the loss of H-1B status will result in immediate loss of H -4 status of his or her spouse. Hence, any unplanned or sudden termination of employment of H-1B worker may adversely affect employment of the H-4 EAD spouse as well.

Conclusion

Since the EAD is dependent on H-4 status which is tied to the spouse’s H-1B status, in the event that the H-1B spouse loses his or her job and is rendered out of status, there is a consequent loss of H-4 status and of the EAD linked to it. The upside of H-4 EAD is that it offers great employment flexibility- one can work full time, part time or even for multiple employers and most of all, it allows one to set up his or her own business.

While H-4 EAD can be a great option to work, H-1B would be a better employment visa option when one is looking for uninterrupted employment period in certain job positions.

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

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.

Reference Links

You can find more information about H-4 EAD on Davies & Associates website:

We can answer these questions for you:

  • How to get a work permit
  • What is a work permit

EB-5 Source of Funds for Italians Webinar

New Consular Fees for Non-Immigrant Visas

US Immigration Advisor

The US Department of State published a Final Rule on March 28 regarding an increase in fees for certain categories of non-immigrant visa applications. The fee increase will be effective May 30, 2023.

The consular fee for employment-based categories such as the H-1B, L-1, and O-1 will increase from $190 to $205, and for the E-1 trader and E-2 treaty investor visa categories, the fee will increase from $205 to $315.

Other consular fees are not affected by this rule, including the waiver of the two-year residency required fee for certain exchange visitors. Current fees will continue to apply until May 30.

Fee information can be found on the Bureau of Consular Affairs website, travel.state.gov, and on the websites of U.S. embassies and consulates

L1 Visa India

How to get L1 Visa for usa from india

US Immigration Advisor

To obtain an L1 visa to work in the United States, your employer outside the US must first have a qualifying relationship with a U.S.-based employer based on ownership and control. The qualifying relationship can be parent-subsidiary, affiliate or branch relationship. You must also prove qualifying employment, which means that you have to an executive, manager, or specialized knowledge employee of a multinational company for at least one full year in the past three years. Your employer must also file a petition on your behalf with the United States Citizenship and Immigration Services (USCIS).

Here are the general steps to apply for an L1 visa from India:

1. Check your eligibility: Ensure that you meet the eligibility criteria for the L1 visa category. You must have worked for a qualifying multinational company for at least one continuous year within the past three years.

2. Obtain a job offer: You must have a job offer from a U.S.-based employer with a qualifying relationship with your current employer.

3. File a petition: Your employer must file Form I-129, Petition for Nonimmigrant Worker, with USCIS on your behalf. This includes providing evidence of the qualifying relationship between the two companies, as well as your qualifications and job duties.

4. Attend an interview: Once the petition is approved, you will need to attend an interview at the U.S. Embassy or Consulate in India. You will need to bring all relevant documentation, such as your passport, visa application, and supporting evidence.

5. Wait for a decision: After the interview, you will need to wait for a decision on your L1 visa application. If approved, you will receive your visa and be able to travel to the United States.

It’s important to note that the L1 visa application process can be complex and may require the assistance of an experienced immigration attorney.

L-1 Visa for Spouses

Can a spouse work on L1 Visa

US Immigration Advisor

Yes, the spouse of an L1 visa holder can work in the United States. An Employment Authorization Document used to be required, but USCIS has updated the guidance in the USCIS Policy Manual to address the documentation that certain E and L nonimmigrant spouses may use as evidence of employment authorization based on their nonimmigrant status.

On November 12, 2021, USCIS clarified that L spouses are now considered employment authorized based on their valid L nonimmigrant status. Since the November 2021 announcement, the Department of Homeland Security added new Class of Admission (COA) codes to distinguish between L spouses and children. As of January 30, 2022, USCIS and CBP began issuing Forms I-94 with L-2S code for L spouse. An unexpired Form I-94 reflecting one of these new codes is acceptable as evidence of employment authorization for spouses.

It’s important to note that the L1 visa holder’s spouse can only work in the United States for the duration of the L1 visa holder’s authorized stay in the United States.

To obtain an L1 visa to work in the United States, your employer outside the US must first have a qualifying relationship with a U.S.-based employer. This means that you must either be an executive, manager, or specialized knowledge employee of a multinational company that has a subsidiary, branch, affiliate, or parent company in the United States. Your employer must also file a petition on your behalf with the United States Citizenship and Immigration Services (USCIS).

Eb-5 Visa Investment Level Increase

Choosing Between E-2 Visa and L-1 Visa: Decision Insights

US Immigration Advisor

Deciding between an E-2 visa and an L-1 visa depends on your individual circumstances and business goals.

The E-2 visa is a non-immigrant visa that allows foreign investors to live and work in the United States based on their investment in a U.S. business. To qualify, you must make a substantial investment in a U.S. business, and you must own at least 50% of the business. The E-2 visa is typically valid for up to five years and can be renewed indefinitely as long as the investor maintains their investment in the U.S. business.

On the other hand, the L-1 visa is a non-immigrant visa that allows multinational companies to transfer executives, managers, or specialized knowledge employees from a foreign branch to a U.S. branch. To qualify, the foreign employee must have worked for the foreign company for at least one year in the three years preceding the transfer and must be coming to the U.S. to work in a managerial, executive, or specialized knowledge capacity. The L-1 visa is typically valid for up to three years and can be extended up to a maximum of seven years for executives and managers, and five years for specialized knowledge employees.

If you are an investor who wants to start a new business in the United States, the E-2 visa may be the better option for you. If you are an executive, manager, or specialized knowledge employee of a multinational company with a U.S. branch, the L-1 visa may be the better option for you.

It is important to note that both visas have their own requirements and limitations, and it is recommended to consult with an immigration attorney to determine which visa is best suited for your individual circumstances.

Lay-offs at Twitter – Impact on Immigration Status of Foreign Employees

usimmigrationadvisor

By Zeenat Phophalia Immigration Attorney, D&A

In a move that sent shockwaves, Twitter laid off half of its workforce on Friday, November 4, according to a Reuter’s report.  Hundreds of these employees who are in H-1B, L-1 or O-1 status would be put on a deadline to get another job or leave the country.  As reported by Forbes, an estimated 8% of Twitter’s employees are on an H-1B visa, based on a National Foundation for American Policy analysis of U.S. Citizenship and Immigration Services (USCIS) data.

The L-1, H-1B and O-1 visa each have a different set of rules.  For the H-1B, the rules provide a 60-day grace period after termination and during this grace period, it’s important that the employee has either: another employer to file the H-1B, switches status to another non-immigrant visa category (F-1, B-1, H-4) or leaves the US.  In the absence of the occurrence of any of these, the person would be deemed to have violated his immigration status upon exceeding the grace period.

Generally, H-1B employees are able to have their employment petition transferred from one employer to another.  That’s no so in the case of L-1 intra company transferee employees; they typically have a more difficult time in situations of termination and lay-offs, often resulting in them having to leave the country. An L-1 employee’s employment is premised on a qualifying relationship between the US employer and its related foreign entity abroad as well as the employee’s prior qualifying employment at the foreign entity abroad.  Hence, L-1 employment cannot be transferred to another employer, unlike the H-1B.

Employers are required to notify the USCIS upon termination of an H-1B employee and are liable for reasonable costs of the employee’s return transportation (if the employment is terminated prior to the end of the authorized period).

If you would like to disucss any of the issues raised in this article, please contact us

This article is published for clients, friends and other interested visitors for information purposes only. The contents of the article do not constitute legal advice and do not necessarily reflect the opinions of Davies & Associates or any of its attorneys, staff or clients. External links are not an endorsement of the content..

Technology Visas

Who Actually Qualifies for the L-1 Intracompany Transfer Visa for Managers & Executives?

usimmigrationadvisor

Immigration Attorney Zeenat Phophalia delves into which staff members are eligible for the L-1A Visa and what constitutes a personnel manager and a function manager.

The L-1 visa classification for intracompany transferees comes in two categories: L-1A (managers and executives) and L-1B (special knowledge workers).  The L-1A allows a foreign company to transfer managers and executives to its related U.S. parent, subsidiary, affiliate or branch office. 

An L-1A manager is generally someone who supervises and manages professional, managerial or supervisory employees, as evidenced by a clear chain of workers reporting up to such manager. 

In addition to this “personnel” manager role, the L-1A classification allows for what is known as a Function Manager – someone who manages an essential function within the organization. 

While the standard applicable to a personnel manager who manages employees is well established, there had been lack of guidance and clarity on what needed to be proven to qualify as a function manager. 

In 2017, the USCIS, provided guidance by adopting the Administrative Appeals Office (AAO) decision in Matter of G- Inc., that sets forth a five-prong analysis to determine L-1A function manager qualification.

Matter of G- Inc. clarifies that, to establish that a beneficiary/employee will be employed in a managerial capacity as a “function manager,” the petitioner must demonstrate that:

  • (1) the function is a clearly defined activity;
  • (2) the function is “essential,” i.e., core to the organization;
  • (3) the beneficiary will primarily manage, as opposed to perform, the function;
  • (4) the beneficiary will act at a senior level within the organizational hierarchy or with respect to the function managed;
  • (5) the beneficiary will exercise discretion over the function’s day-to-day operations.

An essential function, as noted by the AAO, in the above decision, is a function that is “fundamental,” “core” or “necessary” to the company’s business and one that the manager will manage versus performing. 

An organization could have more than one core activity “such as the manufacture or provision of an end product or service, and research and development into other products or services,” as was noted by the AAO.  

While assessing the essential function prong and the other criteria, USCIS will typically evaluate the entire record: overall organizational structure and hierarchy; description of the manager’s duties – products, services or component that he will manage; seniority within the organization; nature of administrative support if any; and so on. 

Often times, it can be harder for smaller organizations to establish that a function is a clearly defined activity and fundamental to the business.  That said, the best approach would be to explain the function with as much specificity as possible while emphasizing the core and essential nature of the activity/function vis-à-vis the organization and its impact on business, and justify how the employee will manage the function at a senior level within the organization.

The adopted decision in Matter of G- Inc establishes policy guidance that USCIS adjudicators are bound by and obligated to follow; it does not apply to the Department of State and so consular posts abroad are not bound by the decision, often times leading to conflicting and different interpretations of the scope of a function manager by consular officers.

To learn more about the L-1 Visa, please click here to contact us and request and appointment.

This article is published for clients, friends and other interested visitors for information purposes only. The contents of the article do not constitute legal advice and do not necessarily reflect the opinions of Davies & Associates or any of its attorneys, staff or clients. External links are not an endorsement of the content.

Employment-Based Green Card Quotas

US Releases 100,000 New Visa Appointments in India

usimmigrationadvisor

The US embassy in India has announced that it is releasing 100,000 new appointments for H visa and L visa applicants. The move will go some way towards clearing the backlog caused by the Covid-19 pandemic.

The US embassy in New Delhi and the five satellite consulates suffered long closures that have caused delays to visa processing. This is a particular problem in a country that tops the list for a number of different US visas categories.

Over the past year we have had to get creative for our clients facing long waits. For example, we have helped clients obtain quicker appointments by booking slots at the US consulate in Ho Chi Minh City, Vietnam instead. This requires careful planning between our India teams and our Vietnam team. Our Vietnam team has been on the ground to provide in-country support once our Indian clients arrive. Indians require a visa for Vietnam, which can be applied for online.

However, many do not have the time or means to get the Vietnam, so the news of new slots for H and L visa appointments is welcome.

The H-1B visa for highly skilled professionals is the most popular visas in India. In fact, Indians account for around three quarters of all H-1B applicants globally. D&A assists H-1B clients with exploring options for staying in the United States before their six years time limit is reached. For example, it is possible to file and Adjustment of Status from H-1B to EB-5 through the Investor Visa program.

The L Visa is for intracompany transfer to the related US office of the Indian firm. The L-1A is for managers & executives and the L-1B is for specialized knowledge employees. Under the L visa rules, it is possible to establish a new US office of your company and transfer yourself as the owner, or other qualifying employees. You must establish a qualifying relationship between the Indian business and the new US business that is being created.

The US has five consulates in India in addition to the embassy in Delhi. They are located in Mumbai, Hyderabad, Bengaluru, Chennai and Kolkata. If you are booking an appointment for EB-5, you can only do so in Mumbai. Watch our how-to video:

Applying for an EB5 Visa appointment in India

See also

L Visa Appointment Guide: Chennai

L Visa Appointment Guide: Mumbai

L Visa Appointment Guide: New Delhi

L Visa Appointment Guide: Hyderabad

L Visa Appointment Guide: Kolkata

This article is published for clients, friends and other interested visitors for information purposes only. The contents of the article do not constitute legal advice and do not necessarily reflect the opinions of Davies & Associates or any of its attorneys, staff or clients. External links are not an endorsement of the content.