Tag: L1 Visa

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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

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Immigration Implications Arising Out of Corporate Transactions

US Immigration Advisor

Whenever a corporate transaction involves a business whose employees include foreign nationals, an immigration due diligence is strongly recommended. Corporate transactions in the form of stock or asset acquisitions, mergers, consolidations, restructuring, etc. could trigger immigration implications. Most work visas for foreign nationals are employer specific, changes in an entity’s structure could jeopardize an employee’s work authorization and inadvertently violate immigration regulations. It’s important to ensure that employees are not rendered out of status and understand requirements and nuances of various work visas in order to analyze how a corporate transaction could affect foreign workers, and potentially the interests of a company.

In the United States, there are two separate visa categories for a foreign worker: (i) non-immigrant; and (ii) immigrant. Non-immigrant workers usually fall under the H-1B, 1, TN and E-2, E-3 visa categories, while immigrant workers are those who have obtained lawful permanent status or are in the process of doing so.

This article covers some of the implications of mergers and acquisitions on H-1B, L-1 and green card applications and I-9 compliance.

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v Impact on H-1B Filings:

Arguably, the most popular and commonly used temporary work visa is the H-1B. For a company with H-1B employees, questions to consider are whether the merger and acquisition will result in a new employer and to what extent will the new entity assume the interests and liabilities of the target company. Where the new employer is a “successor-in-interest” that assumes the interests and obligations of the prior employer which includes the assertions the prior employer made on their labor condition application, filing a new H-1B petition is not necessary. This may therefore allow H-1B workers to continue employment without any interruption. That said, any material changes accompanying corporate changes will require action steps, for example, relocation of the employee and/or a substantial change in the employee’s duties will require filing a revised labor condition application (LCA) and an amended H-1B petition.

An issue likely to come up and affecting a small percentage of companies is the loss of eligibility of H-1B cap exempt status. Certain employers such as governmental research organizations, non- profits, certain colleges and universities are exempt from the H-1B cap quota. Depending on the corporate change, the cap-exempt status could be lost by the new employer, for example when a non-profit entity is replaced by a for-profit entity as a sponsoring employer. This loss of status could render an employee unauthorized to work going forward whose H-1B was granted on the basis of the cap-exempt status. Issues like these should be taken into account and addressed prior to closing.

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v Impact on L-1 Visas:

For an L-1 visa, the law requires the existence of a qualifying relationship between the US entity and the foreign entity from which the employee will be transferring or has been transferred, and the relationship must be that of either a “parent, branch, affiliate or subsidiary.” A merger or acquisition resulting in change in the ownership structure of either entity could terminate the qualifying relationship as required under the regulations, thereby invalidating the L-1 status of an employee. It’s important to perform a thorough analysis of the transaction to determine whether the qualifying relationship has been terminated or retained. For example, if a US subsidiary of a Japanese parent is acquired by a US company, in this situation, the qualifying relationship will have terminated and the L-1 Japanese executive working in the US will have lost work authorization. In cases where it can be proved that the qualifying relationship remains intact, only an amended petition is required.

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v Impact on Green Card Applications:

A lawful permanent residency (green card) application can be broken down into 3 steps in modt cases – labor certification, I-140 petition and adjustment of status application. Companies that fall within the successor-in-interest requirements generally are allowed to continue the green card application filed by the predecessor company.

For a labor certification that is filed by the former employer, as long as the new employer assumes all rights, duties, liabilities and obligations of the former employer, the labor certification will remain valid, provided the job position and/or location of the employee remain unchanged. However, if there are any changes in job position or location, or if the new employer does not qualify as a successor-in-interest, the pending labor certification will be invalidated and the new employer will have to file a new labor certification. This could affect the lawful status of a foreign worker who has relied on a pending labor certification in order to extend his or her H-1B visa. An employee could lose his priority date thereby significantly delaying the already lengthy green card process.

During the I-140 stage, if the I-140 is pending, but the adjustment of status application is not filed at the time of the corporate change, the new employer will have to file an amended I-140 demonstrating the successor-in-interest relationship. This would also be the case if the I-140 has been approved but no adjustment of status application has been filed yet.

On the other hand, when a corporate change comes into effect after the I-485 application is filed, an amended I-140 may not be required. This is because the American Competitiveness in the 21st Century Act (AC21) allows a foreign national to change employers if the I-140 has been approved and the adjustment of status application has been pending for 180 days or more, as long as the new position is in the “same or similar occupational classification.” The new employment must be in

the same or similar job category as the one initially sponsored and filing of an amended I-140 is not needed and neither is the demonstration of successor-in-interest relationship

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Key Concerns: I-9 Compliance

One of the most important (but often overlooked) factors that an employer should take into account at the time of a restructuring is the I-9 compliance. All employers in the U.S. are prohibited from hiring unauthorized employees. One of the fundamental reasons in creating the Form I-9 form was to get employees to establish that they are authorized to work in the U.S. (based on certain prescribed documentation) and to obligate employers to verify and confirm their work authorization. Under the I-9 compliance, each employer is required to verify the identity and employment authorization of all employees.

To ensure that employers comply with the above, the law imposes some harsh penalties. These penalties are not only restricted to employing unauthorized workers but also extend to the failure to properly execute and retain records of employees, whether U.S. citizens or not. These penalties can range from $110 – $1,100 per record for not maintaining proper documentation with additional sanctions that may include bars to filing for any immigration benefit.

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Immigration Due Diligence and Best Practices

Any immigration related issues should be addressed and incorporated into the representations and warranties of the key transaction documents. It is a good practice to identify all employees on non-immigrant visas or in the process of applying for green cards and understand future action steps if any to ensure continuation of their lawful status.

Corporates should adopt a best practice checklist for a corporate immigration program – immigration policies should be in writing and ensure that extension of visas and transfer of employees across borders is done in a timely manner. Tone from the top matters; corporate policy should state clearly that the company will remain compliant with all immigration laws, such as timely completion of employment verification and provision of appropriate employment benefits

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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).

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Deciding between an E-2 visa and an L-1 visa

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.

US Government Proposes Major Fee Increases for Visa Applications

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The United States Citizenship and Immigration Services (USCIS) has published a proposed rule in the federal register that seeks to increase fees for certain immigration benefit requests which includes H-1B visas, L-1 visas and EB-5 visas.  At this stage the fee revision is only a proposal and will go through a period of public consultation through March 6, 2023.  Given the length of the review process, the proposed fee rule will not be applicable for at least several months.

USCIS’s proposed fee schedule represents a 40% weighted average increase. The fee increase, as justified by the agency, is essential for cutting down processing times and backlog and increasing overall efficiency. 

Some key fee revisions are:

Employment Visa Categories

The proposed fee for filing an: L-1 petition is $1,385, an increase from the current $460; H-1B petition is $780, an increase from the current $460 (H-1B cap registration fee would increase to $215 per registration from $10).

EB-5 Investor Visa

Form I-526 & Form I-526E fees (Immigrant Petition by Alien Entrepreneur/Regional Center Investor) would be increased from $3,675 to $11,160. Fee for Form I-829 (Petition by Investor to Remove Conditions on Permanent Resident Status) would be increased from $3,835 to $9,525.

New fee of $600

USCIS has also proposed a new Asylum Program fee of $600 to be paid by employers who file either a Form I-129, Petition for a Non-immigrant Worker, or Form I-140, Immigrant Petition for Alien Worker.

Proposed Fee Increases in Key Visa Classifications  
FormCurrent FeeProposed FeeDifference
Asylum Program FeeN/A$600N/A
I-129 Petition for H-1 Non-immigrant Worker$460$78070%
I-129 Petition for L Non-immigrant Worker$460$1,385201%
I-129 Petition for O Nonimmigrant Worker$460$1,055129%
I-129   Petition for E & TN Non-immigrant Worker$460$1015121%
I-129 Petition for Nonimmigrant Worker: H-3, P, Q or R Classification$460$1015121%
I-140 Immigrant Petition for Alien Worker$700$7152%
I-765 Application for Employment Authorization —
Online | Paper		$410 |
$410      		$555 | $650  35% |
59%
Form I-526, Immigrant Petition by Standalone Investor$3,675$11,160204%
Form I-526, Immigrant Petition by Regional Center Investor$3,675$11,160204%
Form I-131, Application for Travel Document575$63010%
Form I-130 Petition for Alien Relative (Online) (Paper)      $535 $535      $710 $820      33% 53%

*The entire list of all proposed fee changes is available at 2022-27066.pdf (federalregister.gov) (page 18)

The proposal also includes provisions to lengthen the premium processing timeline from 15 calendar to 15 business days.

By Zeenat Phophalia, Of Counsel, Davies & Associates

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.

L-1 Visa petition for Indian

DOS Extends Interview Waiver for Certain Employment Visa Categories

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On December 23, 2022, the US Department of State extended the in-person interview waiver for certain non-immigrant visa categories by another year, i.e., through December 31, 2023.  Consular officers will be authorized to continue to waive in-person interviews on a case-by-case basis for certain first-time and/or renewing applicants. 

Under this new policy, the following applicants will continue to remain eligible for an interview waiver through December 31, 2023:

  • Individual petition-based H-1, H-3, H-4, L, O, P, and Q applicants who were previously issued any type of visa, and who have never been refused a visa unless such refusal was overcome or waived, and who have no apparent ineligibility or potential ineligibility; or
  • Individual petition-based H-1, H-3, H-4, L, O, P, and Q applicants who are citizens or nationals of a country that participates in the Visa Waiver Program, provided they have no apparent ineligibility or potential ineligibility and have previously traveled to the United States using an authorization obtained via the Electronic System for Travel Authorization (ESTA).

Applicants renewing a visa in the same classification within 48 months of the prior visa’s expiration also remain eligible for interview waiver until further notice.

Note that consular officers may still require an in-person interview on a case-by-case basis, Applicants are advised to check embassy and consulate websites for more detailed information and specific procedures.

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?

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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.

Set up beauty company in US

O-1 Talent Visa for Kenyan Entrepreneur in the Beauty Industry

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We are delighted to announce another petition approval this time for an O-1 Visa for a Kenyan CEO. The petition was approved first time without any Requests for Evidence (RFE)

By Verdie Atienza, Senior Immigration Attorney, Davies & Associates

Since the client is a CEO of an existing company in Kenya, we initially considered new office L-1 petition. The L-1A Visa allows for the transfer of managers and executives to the existing or newly established US office of a related overseas firm. However, since she meets the O-1A criteria as well with all her awards, recognitions and press coverage, we decided to go with entrepreneurial O-1A petition since it could get her a three-year visa instead of 1 year with new office L-1 petition.

The Beneficiary is an alien of extraordinary ability in the field of business with a focus in beauty entrepreneurship.  Her specific skills lie in the creation, formulation, marketing and branding of natural and organic haircare products.  She created her own brand of hair care and beauty products consisting of natural and organic hair products such as conditioners, moisturizers, cleansers, stylers, body butters and pure oils. Her unique skills of creating, marketing, and branding has had a significant impact in the black community, not only by empowering black people to take pride in their natural hair, but by also enabling them to raise above anti-blackness and the discrimination against afro-textured hair. 

She is one of the few black-owned natural hair product designers, who has created a business selling high-quality hair product for naturally kinky textures, which until most recently, very few mainstream brands were doing. The demand for natural and organic hair products, and the safe authentic ingredients used in her products has led to a high demand for the brand, worldwide.  

The client’s company in Kenya was launched and established in 2015. It is a high-quality hair product line that guarantees affordable natural and organic hair products such as conditioners, moisturizers, cleansers, stylers, body butters and pure oils, among other things. All products are made from African natural ingredients such as coconut oil from Kenya, shea butter from Uganda and natural fragrances from South Africa.  The star ingredient is Coconut Oil from the Coast of Kenya, a touristic country called Mombasa, famous for its pristine beaches, palm trees and “mnazi,” which is Swahili for pure coconut oil or water.

What is the O-1 Visa?

The O-1 Visa is a non-immigrant visa for individuals who can demonstrate extraordinary talent in a range of fields, from business and arts, to science and athletics. Our firm has helped hundreds of talented individuals move to the United States on both immigrant (permanent residency) and non-immigrant visas.

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.

Immigration in Food Industry

O-1 Talent Visa Petition Approved for Chef of Michelin-Guide Recommended Italian Restaurant in NYC

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By Verdie Atienza, Senior Immigration Attorney, Davies & Associates

I am delighted to announce that my team has secured the approval of an O-1 Petition for an Italian Executive Chef.

The Petitioner is an award-winning and Michelin Guide-recommended authentic Tuscan Italian restaurant in New York City. The restaurant is one of the most highly rated and recommended Italian restaurants in the city, which happens to be one of the most competitive gastronomy markets in the world. It has achieved one of the highest distinctions in the international gastronomy industry: a Michelin Guide Recommendation as a top restaurant in New York City.

The Beneficiary will be working as the Executive Chef. He is a Top Chef and Culinary Artist who has worked in a leading and critical role for some of the most prestigious restaurants in the culinary world in the Italian cuisine industry.

The O-1 Visa is a non-immigrant visa for people with exceptional talent in the fields of business, arts, entertainment, sciences, education and more. The chef received an O-1B Visa for people with extraordinary ability in the arts.

My team also welcome another L-1A Visa approval for an Executive from India. The new office petition was approved with no RFE (Request for Evidence). 

The beneficiary works for a company in India which specializes in providing medical transcription services, medical scribing services, medical billing services, and IT-enabled services. It offers a variety of related services with the goal of enhancing its clients’ operations by minimizing  avoidable losses and expenses, as well as increasing revenues.

It primarily offers its services to clients in the United States. Consequently, it has established and grown a strong client base in this country. The company offers its services to healthcare facilities, such as hospitals, private medical practices and clinics, and physicians within the United States. The company furnishes medical practice supporting services that include remote realtime medical scribing, medical transcription, and revenue cycle management solutions. By offering a full range of professional medical services,  it has excelled in helping healthcare institutions and companies focus on minimizing preventable expenses and substantively improving their revenue as a result. Now, that they have established presence in the US, they aim to reach more customers and provide better services.

The L-1A Visa is a non-immigrant option for managers and executives to relocate to the existing or newly established US branch of their overseas company. The visa is valid for up to seven years, after which time it is possible to transition to a Green Card under the EB-1C Visa.

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.