L-1 VISA BASICS
An L-1 visa is available to someone who is an executive or manager or who has specialized knowledge and is being transferred from a foreign company to a U.S. branch, affiliate, or subsidiary.
The person must have been working for a qualifying organization abroad for one continuous year within the three years immediately preceding his or her admission to the United States. An L-1 visa is initially valid for one year if establishing a new office in the United States. Other L-1 visa holders may stay initially for up to three years, and can receive extensions. L-2 spouses may apply for independent work authorization. This sets up an interesting option, where a spouse on an L-1 visa may allow the other spouse to pursue an entrepreneurial venture.
L-1 VISA REQUIREMENTS
Since we are considering the L-1 visa as an option for entrepreneurs and startups, we will focus on L-1 visas for executives and managers, including those managing one or all aspects of a business. The basic requirements for an L-1 petition for an executive or manager are:
- QUALIFYING RELATIONSHIP. The foreign company must have a ‘‘qualifying relationship’’ with the U.S. company. The qualifying relationship consists of parent/subsidiary, affiliate, 50/50 joint venture, or branch office.
- CONTINUING FOREIGN OPERATIONS. The foreign company must continue to conduct business outside the United States for the duration of the L.
- FOREIGN EMPLOYMENT CAPACITY. The employee must have held an executive or managerial position with the foreign company for one year within three years preceding the L-1 application date.
- U.S. EMPLOYMENT FUNCTIONS. The employee must perform executive or managerial functions in the United States.
- TEMPORARY TRANSFER TO THE UNITED STATES. The U.S. transfer must be intended as temporary, although permanent immigrant intent does not preclude obtaining L visa status.
- U.S. PHYSICAL PREMISES. The foreign employer must have U.S. physical premises.
L-1 VISA STRATEGIES FOR ENTREPRENEURS
Many people mistakenly think that the L visa is limited to executives from multi-million dollar multinational corporations. Not so. The L-1 category is also useful for small and medium sized businesses whose owners, executives, and managers may want to come to the United States to start a business.
The L-1 category has no minimum investment or capital requirements and no set number of U.S. employees that must be hired. In fact, USCIS will grant a one-year period to foreign nationals to open an office and start operations of the U.S. business. Before the end of that initial one-year period, the foreign national must demonstrate that the U.S. business is operating and moving forward on its business strategy.
Employment of U.S. employees is a plus, but not an absolute requirement, provided the L-1 visa holder is actually working in an executive or managerial capacity. That may include managing direct employees, independent contractors, or individuals working at other companies holding executive, managerial or professional positions. A well-prepared petition is a necessity, especially with the scrutiny given to L-1s for startups.
CASE STUDY: DOES THIS ENTREPRENEUR QUALIFY FOR AN L-1 VISA?
Maybe. For example, you might consider asking Ajit to reach out to his CEO friend at XYZ Software to see if the CEO would take a fifty percent interest in the U.S. startup. This arrangement would meet the L-1 requirements for qualifying relationship because XYZ Software would be, at the time of filing the L-1 petition, controlled by the same individual who controls the U.S. startup (the Indian CEO would own fifty percent of both companies).
This corporate restructuring would also work if XYZ Software controlled fifty percent of the U.S. startup. Under these facts, Ajit would also meet the ‘‘one out of prior three years’’ requirement. Ajit has been in the United States for two years: one as an MBA student and one in OPT status. At the time of filing, when you count back three years, Ajit was working in India as an executive for XYZ Software. When he left to go to school in the United States, he had worked for XYZ Software for at least one year.