M. L Visas. INA §101(a)(15)(L), 8 U.S.C. §1101(a)(l5)(L), 8 C.F.R. §214.2(l); 22 C.F.R. §41.54.

1. Definition-8 C.F.R. §214.2(l)(1)(ii):

a. Alien must be employed continuously abroad for 1 of the past 3 years by parent, branch, affiliate or subsidiary of U.S. company preceding his application for admission. The Immigration Act of 1990 eliminated the "immediately preceding" requirement, so that a person may now be transferred into the U.S. if s/he worked for the entity abroad continuously for one year at any time within the preceding three years. In the case of a person being transferred where the importing employer has filed a blanket L, the transferee need only work for the company abroad for 6 months. INA §214(c)(2)(A).

b. Employment by a firm, corporation or other legal entity or its parent, branch, affiliate or subsidiary. Includes profit, nonprofit, religious, charitable organizations. 9 FAM 41.54 N7.3; Form of entity not relevant. Also includes accounting or management consulting firms with an internationally recognized presence notwithstanding their status as partnerships.

c. Alien seeks to enter U.S. temporarily to continue to work for same employer or its affiliate or subsidiary. The employee is not required to perform full-time services in the U.S. but must dedicate a significant portion of his or her time on a regular and systematic basis. O.I. §214.2(l)(5)(ii)(B). The DOS takes the view that while full time employment is anticipated the beneficiary does not have to perform full-time services within the U.S. The person's principal purpose in the U.S., however, must be consistent with L status.

d. Must continue to work in capacity that is managerial, executive or involves specialized knowledge. I.A.90 §206(a).

e. The INA §214(b) presumption of immigrant intent is no longer applicable to Ls. Thus, a petition for an immigrant visa may be pending while person maintains L- 1 status.

2. One-Year Employment Requirement:

a. One-year cannot be met by working part of year for affiliate or branch in U.S. But time spent in U.S. will not interrupt one year. 8 C.F.R. §214.2(l)(1)(ii)(A).

b. Part-time employment: Can only use combination of part-time employment to meet one-year continuous requirement if part-time work is for affiliated companies (i.e., parent, subsidiary, branch); 9 FAM 41.54 N11.1.

c. Blanket Ls Only Require 6 months Prior Employment. Employee need only work for company abroad for 6 months instead of one year if employer is petitioning under blanket L program. INA §214(c)(2)(A).

d. One year preceding admission vs. one year preceding filing petition for L. The statute and regulations appear to be in conflict in regard to whether the one-year requirement abroad must be met prior to seeking admission into the U.S. or prior to filing the I-129 petition for the L visa.

3. "Employee"

a. If majority or substantial stockholder of U.S./foreign corp.-Can also be L-1 employee.

b. If sole stockholder; 9 FAM 41.54 N7.6

c. If sole proprietor.

d. Where beneficiary is owner or major stockholder special requirements for eligibility. 8 C.F.R. §214.2(l)(3)(vii).

e. Compensation

(1) Employment does not necessarily depend upon amount or existence of a salary.

(2) Payment by foreign or U.S. company is not material; 9 FAM 41.54 N9.1

(3) There is no prevailing wage requirement, and therefore consular officers should only determine whether person would be public charge.

(4) Beneficiary employed in U.S. directly by a foreign company, who is not controlled in any way by the foreign company's office in the U.S. will not qualify for L status. 9 FAM 41.54 N9.2.

f. Out-Sourced or Agency Employment. A person who is "out-sourced" and is employed by an agency but works and is directed by affiliate may not be considered an employee of the affiliate because s/he is employed by the agency. "The essential element in determining the existence of an 'employer- employee' relationship is the right of control, that is, the right of the employer to order and control the employee in the performance of his or her work.

4. Temporariness

a. The extent that "temporariness" will continue to be a factor has been lessened as a result of the recognition of the doctrine of "dual intent" for L petitions under the Immigration Act of 1990. INA §214(h), 8 U.S.C. §1184(h).

b. Factors in Determining Temporariness:

(1) U.S. operation limited.

(2) Beneficiary's commercial interests require his departure?

(3) Specific showing that beneficiary's services have temporary limits.

(4) U.S. company's operation after departure of beneficiary.

c. Burden of Proof:

(1) Burden of proof is on the petitioner.

(2) When beneficiary is owner, operator or major stockholder petition must include evidence of temporariness. 8 C.F.R. §214.2(l)(3)(vii).

5. Qualifying Organization

a. A majority stock ownership in both companies sufficient. [But watch employee/ temporary problem].

b. Less than majority ownership, but control, may be sufficient to qualify relationship as subsidiary/affiliate. 9 FAM 41.54 N7.1-4b.

c. Contractual relationship (e.g., licensing/franchising) is generally not sufficient to establish necessary relationship.

d. Ownership by common group (e.g., where U.S. affiliate owned 1/3 by family corp. 1/3 by person who owns foreign corp. and 1/3 by family of person) or same individuals. To establish affiliate each individual in the group must own approximately the same share or proportion of each entity.

e. Church organizations may qualify as parent/subsidiary or affiliates under certain circumstances.

f. Factors:

(1) Common name.

(2) Regular sharing and exchange of personnel.

(3) Cross directorship.

(4) Sharing of technical, financial and research skills.

(5) Size and general recognition of organization.

g. Partnerships that market accounting or marketing services under internationally recognized name and under an agreement with a worldwide coordinating organization that is owned and controlled by the member firms, are affiliates. 8 C.F.R. §214.2(l)(1)(ii)(L)(3).

h. A branch is an operating division or office of the same organization in a different location. The office or operating division is not a separate business entity. 9 FAM 41.54 N7.1-3; 8 C.F.R. §214.2(l)(1)(ii)(J).

6. Rendering services to same employer.

a. Must have employment relationship with U.S. company. Cannot transfer someone to work here without U.S. business entity having control/salary.

b. If U.S. company is less than 1 year old it must show proof of physical premises (lease/deed). 8 C.F.R. §214.2(l)(3)(v)(A).

c. Both U.S. and foreign company must be active. 8 C.F.R. §214.2(l)(1)(ii)(G).

(1) Doing business requires activity not just registration of business or office or presence of an agent. 8 C.F.R. §214.2(l)(1)(ii)(H); 9 FAM 41.54 N10.2

d. L classification is not created for self-employment. 9 FAM 41.54 N10.4.

7. Continue to Work in Managerial, Executive or Specialized Skill.

a. Must be manager, executive or worked in specialized skill abroad; may be any of these three in U.S.

b. Managerial capacity now defined under INA §101(a)(44)(A), 8 U.S.C. §1101(a)(44)(A); 8 C.F.R. §214.2(l)(1)(ii)(B)-Managerial capacity means an assignment with an organization in which the employee primarily:

(1) manages the organization, department, subdivision, function or component;

(2) supervises and controls the work of other supervisory, professional or managerial employees, or manages an essential function within the organization or department or subdivision of the organization;

(3) has authority to hire and fire or recommend personnel actions (if other employees directly suprervised), or if no direct supervision, functions at a senior level within hierachy or as to function managed and

(4) exercises discretion over day-to-day operations of the activity or function;

First line supervisors are not considered managers unless the employees they supervise are professionals Statute was not intended to limit managers or executives to persons who supervise a large number of persons or large enterprise. Supervision includes supervising independent contractors as well as employees.

c. Executive capacity defined under INA §101(a)(44)(B), 8 U.S.C. §1101(a)(44)(B), 8 C.F.R. §214.2(l)(1)(ii)(C), means an assignment in an organization in which the employee primarily:

(1) Directs the management of the organization or a major component or function;

(2) Establishes goals and policies;

(3) Exercises wide latitude in discretionary decision making and

(4) Receives only general supervision or direction from higher level executives, board of directors or stockholders. In determining whether an individual is acting in a managerial or executive capacity, AG shall take into account the reasonable needs of the organization, component or function in light of the overall purpose and stage of development of the organization, component or function. The number of employees supervised is not determinative. 9 FAM 41.54 N8.2.

(5) Validity of previous regulations upheld in Fedin Bros. Co., Ltd.

d. Specialized knowledge is defined to include a person who has special knowledge of the company product, service, research, equipment, techniques, management or other interests and its application in international markets or has an advanced level of knowledge of processes and procedures of the company. 8 C.F.R. §214.2(l)(1)(ii)(D). In addition the FAM at 9 FAM 41.54 N8.2-2 further defines specialized knowledge as:

(1) Not simply a skilled worker. Rather someone whose advanced level of expertise and proprietary knowledge of the employer organization's product, service, research, equipment, techniques, management or other activity is not readily available in the U.S. labor market. The term "proprietary" however, is no longer in the regulations.

(2) Characteristics of employee with "specialized knowledge" include:

(a) Possesses knowledge that is valuable to the employer's competitiveness in the market place;

(b) Is uniquely qualified to contribute to the U.S. employer's knowledge of foreign operating conditions;

(c) Has been utilized as a key employee abroad and has been given significant assignments which have enhanced the employer's productivity, competitiveness, image or financial position; and

(d) Possesses knowledge that can be gained only through extensive prior experience with that employer.

(3) Offsite work. This is a common practice and "is not in and of itself sufficient to warrant visa refusal." Must determine whether person has specialized knowledge and whether petitioner or third party is controlling work.

e. Specialized knowledge professional. 8 C.F.R. §214.2(l)(1)(ii)(E)-Person with specialized knowledge who is a member of the professions under INA §101(a)(32), 8 U.S.C. §1101(a)(32). This provision is used in connection with blanket petitions. 8 C.F.R. §214.2(l)(4)(i)(D). These persons typically have a professional degree.

8. Nature/Size of Company is Irrelevant.

a. Parent and subsidiary companies do not have to be in same business.

b. No size limitation of company. 9 FAM 41.54 N7.5

c. No country limitation as with E visas.

d. Can be transferred from one U.S. affiliate to another but must file new I-129.

9. New Office. CIS regulations detail special provisions when a new parent, subsidiary, branch or affiliate office is opened in the U.S. and wishes to employ a manager or executive but typically does not have proof of extensive business activity in the U.S. because it was recently opened. 8 C.F.R. §§214.2(l)(1)(ii)(F) and (H), (3)(v), (7)(i)(A)(3).

10. An appeal of a denial of an L-1 petition by the regional service center is filed with the Administrative Appeals Office. A review of the AAO's decision may be filed in federal court but will generally be based on the agency's record.

e. Revocation: It is automatic when petitioner withdraws petition or when petitioner fails to request indefinite validity of a blanket petition. Notice of an intent to revoke is sent when one or more entities no longer qualifies. 8 C.F.R. §214.2(l)(9). An abuse of discretion standard applies to review revocation.

f. Filing During Pendency of LPR applications. An L-1 may apply for an extension of status (including dependents), a new L-1 petition, or a change of status to another L or H category even if s/he has filed an application for or received an approval of a LC or an IV petition or filed an A/S application. 8 C.F.R. §214.2(l)(16)(i). However, if L-1 with pending A/S applies for an EAD based on the A/S application and works for another employer, his L-1 status is violated.

j. Travel and Employment Authorization While Adjustment Application is Pending.

If an L-1 is not under exclusion, deportation, or removal proceedings and is in valid L-1 status, s/he may travel while her A/S application is pending without an advance parole if she: (1) is coming to resume employment with the same employer her L-1 is authorized for; (2) is in possession of a valid L visa (if required); and (3) is in possession of the original I-797 receipt for adjustment. Dependent family members in lawful L-2 status may also travel during the A/S if the same conditions for the L-1 principal exist. 8 C.F.R. §245.2(a)(4)(ii)(C). However, if s/he travels and reenters on an advance parole and s/he has a valid and approved L-1 petition, s/he may apply for an extension of her status and CIS will terminate her parole and admit her as an L-1.

k. Spouse/Children-Receive L-2 visas. Regarding adjustment of L-2s refer to 8 C.F.R. 245.2(a)(4).

(1) Admission and Extensions. The 5/7 year limitation on admission and extensions for L-1s applies to spouses and dependents as well. 8 C.F.R. 214.2(l)(7)(ii). If the limitation is not reached, however, an L-2 may remain in the U.S. and change status even if the L-1 departs.

(2) Employment Authorization for Spouse. Spouse is now eligible for employment authorization. INA §214(c)(2)(E).

l. Blanket Procedure-8 C.F.R. §214.2(l)(4);

(1) Requirements:

(a) Petitioner has office and has been doing business in U.S. for one year.

(b) Petitioner has 3 or more domestic and foreign branches, subsidiaries or affiliates. Petitioner and entities are engaged in commercial trade or services.

(c) Combined U.S. annual sales of $25 million, U.S. workforce of 1,000 or received approval of at least 10 L petitions in last 12 months.

(d) Nonprofit organizations can not file blanket petitions. 9 FAM 41.54 N14.2b.

(e) Employee need only work for company abroad for 6 months instead of one year. INA §214(c)(2)(A). But note that this will preclude the L-1 from obtaining LPR status through EB-1 as that provision still requires one year of employment with foreign company.

(2) Procedure:

(a) Obtain approval of blanket from Regional Service Center (RSC). All extensions, change of status must be filed with RSCs. 8 C.F.R. §214.2(l)(7)(i).

(b) Petition initially approved for 3 years; must then apply for extension. 8 C.F.R. §214.2(l)(7)(i)(B).

(c) Blanket L procedures may not be used for specialized knowledge positions that are not "professional" in nature. 8 C.F.R. §214.2(l)(5)(ii)(D)

(d) New or amended petition is not required where beneficiary changes job duties. 8 C.F.R. §214.2(l)(5)(ii). A new petition is not needed for transfers to any organization listed on a blanket petition if the job duties are virtually the same.