\ afm \ Adjudicator's Field Manual - Redacted Public Version \ Chapter 32 Petitions for Intracompany Transferees (L classification). \ 32.3 Individual L Petition Process.
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Individual L Petition Process.
(Chapter 32.3 Revised [07/28/05];
(1) Basic Provisions. Section
101(a)(15)(L) of the Act and regulations at
8 CFR 214.2(l) are designed to facilitate the temporary transfer of foreign nationals with management, executive, and specialized knowledge skills to the United States to continue employment with an office of the same employer, its parent, branch, subsidiary, or affiliate. Petitioners seeking to classify aliens as intracompany transferees must file a petition on Form
(including the L supplement), or, in the case of a visa-exempt alien, on Form I-129S with USCIS for a determination on whether the alien is eligible for L-1 classification and whether the petitioner is a qualifying organization. An individual L-1 petition is filed at the service center having jurisdiction where the alien will be employed, except that NAFTA cases (discussed in
Chapter 37) may be filed at Class A ports of entry. General adjudicative principles and procedures described in
Chapter 10 apply. For statistical purposes executives and managers are internally coded (in CLAIMS) L-1A and specialized knowledge employees are coded L-1B, although only “L-1” is used for visa issuance and admission purposes.
(2) Fee Required by Public Law 111-230. Public Law 111-230, enacted August 13, 2010, requires the submission of an additional fee of $2,250 for certain L-1 petitions.
(A) Application of the Fee. Public Law 111-230:
- Requires the submission of an additional fee of $2,250 for certain L-1A and L-1B petitions, where those petitions are postmarked on or after August 14, 2010;
- Applies if:
- The L-1 petitioner employs 50 or more employees in the United States; and
- More than 50 percent of the petitioner's employees in the United States are in H-1B, L-1A, or L-1B nonimmigrant status; and
- Will remain in effect through September 30, 2014.
(B) Definition of employer. To determine who is subject to the additional fee of $2,250, USCIS will apply the definition of "employer" found at 8 CFR § 214.2(h)(4)(ii), which states:
[A] person, firm, corporation, contractor, or other association, or organization in the United States which:
(1) engages a person to work within the United States;
(2) has an employer-employee relationship with respect to employees under this part, as indicated by the fact that it may hire, pay, fire, supervise, or otherwise control the work of any such employee; and
(3) has an Internal Revenue Service Tax Identification Number.
The use of this definition for purposes of determining the application of this new fee does not extend or authorize its application beyond Public Law 111-230 and the H-1B rules and regulations.
(C) Counting Full-time and Part-time Employees. For the purposes of Public Law 111-230, all employees, whether full-time or part-time, will count towards the calculation of whether an employer is subject to the new fee.
(D) U.S. and Foreign Payrolls. When calculating the percentage of employees in H-1B or L-1 status, all employees in the United States, regardless of whether they are paid through a U.S. or foreign payroll, will count toward the calculation.
(E) Treatment of Petitions Filed Before Publication of Revised Forms. If either an initial petition for L-1 classification or an L-1 petition requesting a change of employer is filed before the revised Form I-129 and Form I-129S are published, the adjudicator will review any explanation or supporting evidence to determine whether the fee required by Public Law 111-230 applies to the petition, as explained in the following chart:
|The L-1 petition or Form I-129S filed by a visa-exempt individual is postmarked before August 14, 2010
||The fee does not apply; adjudicator can adjudicate the case.
|The L-1 petition (or Form I-129S filed by a visa-exempt individual) seeking either (a) initial grant of nonimmigrant classification for the beneficiary or (b) authorization for an alien already classified as an L-1 nonimmigrant to change employers is postmarked on or after August 14, 2010 through, and including, September 30, 2014.
||The petitioner has paid the fee required by P.L. 111-230 OR the petitioner has attached a statement or evidence that it is exempt from the fee required by P.L. 111-230.
||The adjudicator can adjudicate the case.
|The petitioner has not paid the fee required by P.L. 111-230 AND the petitioner has not attached a statement or evidence that it is exempt from the fee required by P.L. 111-230.
||The employer has fewer than 50 employees in the United States.
||The fee does not apply, the adjudicator can adjudicate the case.
|The employer has 50 or more employees in the United States.
||50% or fewer of the employees in the U.S. are in H-1B, L-1A, or L-1B nonimmigrant status.
||The fee does not apply, adjudicator can adjudicate the case.
|More than 50% of the employees in the U.S. are in H-1B, L-1A, or L-1B nonimmigrant status.
||The fee DOES apply. The adjudicator must issue an RFE explaining that the petitioner must either submit the fee or provide evidence that it is, in fact, not subject to the fee.
|The adjudicator CANNOT determine from other documents submitted whether the fee required by P.L. 111-230 applies
||The adjudicator must issue an RFE explaining the provisions of P.L. 111-230 and informing the petitioner that he or she must submit either the fee or a statement or other evidence as to why the fee does not apply.
(F) Treatment of I-129S. If the fee applies, the petitioner should remit the additional fee to the USCIS office where the Form I-129S is filed.
(G) Composition of Request for Evidence (RFE). If the fee applies but was not collected, or if the adjudicator cannot determine whether the fe applies, the adjudicator should issue an RFE to the petitioner soliciting the additional fee or a statement or other evidence that the fee does not applies. The RFE should also cover any other deficiencies in the filing.
An RFE issued to address only the new fee, should provide the petitioner with a maximum of 30 days to respond to the RFE. If the RFE addresses other deficiencies that would normally allow more time to respond, then the RFE may provide more than 30 days.
The RFE will inform the petitioner that it must submit an additional fee if it employs 50 or more individuals in the United States and over 50% of those employees are in the H-1B, L-1A, or L-1B nonimmigrant status.
- The adjudicator must deny the petition if the petitioner fails to respond to the RFE. (Previously submitted fees will not be returned.)
- If the petitioner responds to the RFE and indicates that it is not subject to fee, but there are discrepancies that indicate otherwise, further clarifying information may be requested , or in certain cases, a notice of intent to deny (NOID) may be issued.
- A petition cannot be approved if the petitioner responds to the RFE and provides evidence that it is subject to the additional fee, but fails to submit the additional fee with the response. (If a petition is denied, previously submitted fees will not be refunded.)
(H) Treatment of Petitions Once Revised Form I-129 and Form I-129S Are Published. After ther evised Form I-129 and Form I-129S are implemented, an L-1 petition subject to the additional fee that is submitted without the fee, will be rejected. Rejected filings do not retain a filing date. If, after the revised form is implemented, an adjudicator encounters an L-1 petition that was receipted without the additional fee and determines that the fee was required, the adjudicator should issue a NOID soliciting the additional fee. Whenever possible, the notice should cover any other deficiencies in the filing.
(I) Submission of Inaccurate Statement(s) by Petitioner to Avoid Payment of Fee. The adjudicator should follow local procedures to refer to the Center Fraud Detection Office (CFDO) any petitions where there is information or documentation to substantiate that the petitioner has inaccurately presented material facts in the petition and supporting documentation to avoid paying the additional fee.
Basic Evidentiary Requirements for an L-1 Petition
. Evidence of the following must be submitted to support all petitions filed for L classification:
There must be a qualifying relationship between the business entity in the United States and the foreign operation which employs the alien abroad;
For the duration of the alien's stay in the United States as an intracompany transferee, the petitioner must continue to do business both in the United States and in at least one other country, either directly or through a parent, branch, subsidiary, or affiliate.
The alien must have been employed abroad by the foreign operation for at least one of the last three years. Such one year of employment outside the U.S. must have been continuous. Although authorized periods of stay in the United States for the foreign employer are not interruptive of the prior year of employment, such periods may not be counted towards the qualifying year of employment abroad. See
Matter of Kloeti,
18 I&N Dec. 295.
The alien's prior year of employment abroad must have been in a managerial, executive, or specialized knowledge capacity. The prospective employment in the United States must also be in a managerial, executive, or specialized knowledge capacity. However, the alien does not have to be transferred to the United States in the same capacity in which he or she was employed abroad. For example, a manager abroad could be transferred to the United States in a specialized knowledge capacity or vice versa. See
Matter of Vaillancourt,
13 I&N Dec. 654.
The burden is on the petitioner to provide the documentation required to establish eligibility for L classification. The regulations do not require submission of extensive evidence of business relationships or of the alien's prior and proposed employment. In most cases, completion of the items on the petition and supplementary explanations by an authorized official of the petitioning company will suffice. In doubtful or marginal cases, the director may require other appropriate evidence which he or she deem
s necessary to establish eligibility in a particular case.
of the Act eliminates the need to adjudicate the issue of whether an L nonimmigrant is actually being transferred on a temporary basis. Many such nonimmigrants eventually adjust status or procure an immigrant visa. Also, section
eliminates L nonimmigrants from the classes of persons “presumed to be an immigrant.” (However, even before the addition of section 241(h), an L-1 nonimmigrant was not required to maintain a foreign residence which he/she had no intention of abandoning.)
Anti “Job-Shopping” Provisions of the L-1 Visa Reform Act
Among the provisions of Public Law 108-447 at Division J, Title IV, is the L-1 Visa Reform Act. Section 412(a) of Title IV adds a new section 214(c)(2)(F) to the Immigration and Nationality Act, as amended (Act). New section 214(c)(2)(F) renders ineligible for L nonimmigrant classification a specialized knowledge worker if the worker will be “stationed primarily” at the worksite of an employer other than the petitioner or an affiliate, subsidiary, or parent and either (1) the alien will be “principally” u
nder the “control and supervision” of the unaffiliated employer, or (2) the placement at the non-affiliated worksite is “essentially an arrangement to provide labor for hire for the unaffiliated employer,” rather than a placement in connection with the provision of a product or service for which specialized knowledge specific to the petitioning employer is necessary.
Several conditions must be met in order for this ground of ineligibility to apply:
First, the alien worker must be a specialized knowledge worker. The term “specialized knowledge” should be familiar to adjudicators and is defined at
8 CFR 214.2(l)(ii)(1)(D)
and, with respect to professionals, at
8 CFR 214.2(l)(ii)(1)(E)
. The change does not apply to other (i.e., managers and executives) L nonimmigrants.
Second, the worker must be stationed primarily at a worksite
the L organization. Thus, so long as the worker is to be stationed and actually employed within the L organization, this particular ground of ineligibility does not apply. Moreover, even if the worker is stationed outside the L organization, the worker must be “stationed primarily” outside the organization. We interpret this provision to mean that, as a threshold matter, in order for the section
bar to L classification to apply, a majority of the alien’s work-related activities must occur at a location other than that of the petitioner or its affiliates. In this regard, even if the majority of an alien’s time is physically spent at the petitioner or its affiliates’ location, to the extent that such time can be considered to be “down time” rather than time actually performing the services described in the petition, an alien might be subject to the section 214(c)(2)(F) bar (since, in this example,
the majority of the alien’s actual work time is spent at an unaffiliated company or companies’ work site). The number of non-affiliated worksite locations where the alien might be stationed, by itself, is not relevant; what is relevant is the location where the alien will be actually be engaged in employment as specified in the underlying petition.
If the alien worker is “stationed primarily” outside the L organization, as described above, then there are two independent means by which the alien worker may be rendered ineligible for L status.
The first means relates to the control and supervision of the worker. Even if the alien worker is to be stationed “primarily” outside the L organization, that fact alone does not establish ineligibility for L classification. In order for the ground of ineligibility to apply, “control and supervision” of the worker at the non-affiliated worksite must be “principally” by the unaffiliated employer. Again, adjudicators should use the common dictionary meaning of the term “principally,” which means “first and
foremost.” Thus, even if the non-affiliated entity exercises some control or supervision over the work performed, as long as such control and supervision lies first and foremost within the L organization, and the L organization retains ultimate authority over the worker, the ground of ineligibility does not apply. For example, an L-1 worker may be stationed primarily outside the L organization, but receives all direction and instruction from a supervisor within the L organization structure. The non-L or
ganization client may provide input, feedback, or guidance as to the client’s needs, goals, etc., but does not control the work in the sense of directing tasks and activities. So long as the ultimate authority over the L-1 worker’s daily duties remains within the L organization, the fact that there may be some intervening third party supervision or input between the worker and the L organization does not render the worker ineligible for L-1B classification.
The second means relates to the nature of the alien worker’s placement outside the L organization. Such an alien worker is ineligible for L classification if the placement at the unaffiliated worksite is “essentially an arrangement to provide labor for hire” for the unaffiliated employer rather than a placement in connection with the provision of a product or service for which specialized knowledge specific to the petitioning employer is necessary. What constitutes “essentially” such an arrangement is in
herently a fact question, and adjudicators therefore must look at the all aspects of the activity or activities in which the alien will be engaged away from the petitioner’s worksite. In general, if the off-site activity or activities do not require specialized knowledge of the petitioner’s product or services, or if such knowledge is only tangentially related to the performance of such off-site activities, the alien will fall within the ambit of the section
bar. For example, an alien would be ineligible for L classification if a petitioner is essentially in the business of placing workers with various unaffiliated companies, irrespective of the alien’s specialized knowledge of the petitioner’s particular product or service, where the off-site activities to be performed do not require such specialized knowledge. On the other hand, if the petitioner is primarily engaged in providing a specialized service, and typically sends its specialized knowledge personn
el on projects located on the work site of its unaffiliated clients to perform such services, then, assuming the alien remains under the principal control and supervision of the petitioning employer, and otherwise meets the basic requirements for L classification, the alien would not be subject to the section 214(c)(2)(F) bar.
The petitioner for an intracompany transferee must be a firm, corporation, or affiliate thereof which is seeking to transfer a foreign employee to the United States temporarily from one of its operations outside the United States. Either the United States employer or the foreign employer may file a petition with USCIS to classify the alien as an intracompany transferee. The petitioner must be actively engaged in providing goods and/or services in the United States and abroad, either directly or through a pa
rent, branch, subsidiary, or affiliate, with employees in both countries, for the duration of the alien's stay. The mere presence of an agent or office of the petitioner is insufficient evidence of this requirement.
Depending on the nature of the petitioner, different types of evidence may be required:
Large, Established Organizations
. Such organizations may submit a statement by the company's president, corporate attorney, corporate secretary, or other authorized official describing the ownership and control of each qualifying organization, accompanied by other evidence such as a copy of its most recent annual report, Securities and Exchange Commission filings, or other documentation which lists the parent and its subsidiaries.
Small Business and Marginal Operations
. In addition to a statement of an authorized official regarding ownership and control of each qualifying organization, other evidence of ownership and control should be submitted, such as records of stock ownership, profit and loss statements or other accountant's reports, tax returns, or articles of incorporation, by-laws, and minutes of board meetings.
. If the beneficiary is coming to the United States to open a new office, proof of ownership and control, in addition to financial viability, is required. The petitioners' statement of ownership and control should be accompanied by appropriate evidence such as evidence of capitalization of the company or evidence of financial resources committed by the foreign company, articles of incorporation, by-laws, and minutes of board of directors' meetings, corporate bank statements, profit and loss statements or ot
her accountant's reports, or tax returns. See documentary requirements for new office cases in
8 CFR 214.2(l)(3)(v)
and discussion in
Matter of Leblanc, 13 I&N Dec. 816
If the petition is approved under this provision, its validity is limited to one year, after which a new petition must be filed for extension of stay (see
8 CFR 214.2(l)(7)(i)(A)(3)
. To establish who owns and controls a partnership, a copy of the partnership agreement must be submitted. To establish what the partnership owns and controls, other evidence may be necessary. By law, international partnerships which provide accounting services or management consulting services meet the criteria as qualifying organizations for L-1 purposes. Extensive documentation in such cases is not required.
. In cases where the business is not a separate legal entity from the owner(s), the petitioner's statement of ownership and control must be accompanied by evidence, such as a license to do business, record of registration as an employer with the Internal Revenue Service, business tax returns, or other evidence which identifies the owner(s) of the businesses.
. As discussed in
Matter of Hughes, 18 I&N Dec. 289
(Commissioner, 1982), there are two types of joint venture business enterprises - equity joint ventures and non-equity joint ventures:
An equity joint venture is created under corporate law and exists when two or more companies contribute capital to the venture. A qualifying L-1 relationship can exist between a contributing company and the resulting venture if the contributing company owns at least 50% of the venture and exercises control over the venture.
A non-equity joint venture, on the other hand, is a contractual arrangement in which one or more of the contributing companies provides noncapital resources (e.g., manufacturing processes, patents, trademarks, managerial know-how, or other essential factors). A non-equity joint venture does NOT establish a qualifying L-1 relationship.
Detailed descriptions of the alien's prior year of employment abroad and of the intended employment in the United States are required from the petitioner to determine if the alien was and will be employed in a managerial, executive, or specialized knowledge capacity.
To document the alien's employment abroad and the alien's intended employment in the United States, a letter signed by an authorized official of the petitioner describing the prospective employee's employment abroad for the requisite one year and the intended employment in the United States, including the dates of employment, job titles, specific job duties, number and types of employees supervised, qualifications for the job, level of authority, salary, and dates of time spent in the United States during t
he qualifying period. In cases where the accuracy of the statement is in question, the director may require other evidence, such as wage and earning statements or an employment letter from an authorized official of the employing company abroad.
The adjudicator may not request an overseas investigation of the qualifications of a beneficiary of an L-1 petition if there are other grounds for denial of the petition. Any request for an overseas investigation must be accompanied by copies of the Form I-129 and supporting documents. (See
regarding overseas investigations requests.) Attach any report of investigation of the beneficiary's qualifications to the approved petition when it is forwarded to the consulate at which the visa application is to be made. Attach any report of investigation on the petitioner to the approved petition being forwarded to the consulate only if it might have a bearing on the visa issuance.
There is a high incidence of misrepresentation involving work experience gained in certain countries (see Appendix 30-2). Even so, when the adjudicating officer is convinced that the evidence substantiates the work experience for an L-1 nonimmigrant, the petition may be approved. The officer shall send all other L-1 nonimmigrant petitions for these countries for investigation.
All cases meeting the minimum threshold for articulable fraud must be referred to the Fraud Detection Unit (FDU) Intelligence Research Specialist (IRS) or FDNS Immigration Officer (IO) on the standard Fraud Referral Sheet (FRS) per the instructions in the December 14, 2004 memorandum entitled
Criteria for Referring Benefit Fraud Cases
. Field offices will, without exception, submit requests for overseas investigations to the FDU IRS/FDNS IO via the FRS. The FDU IRS/FDNS IO will track all case leads in the Fraud Tracking System (FTS) and will report all findings of fraud to Adjudications using the standard Fraud Verification Memorandum.
If the necessary supporting documents are present and the petition appears to be approvable in all respects, endorse the action block with the approval stamp. Indicate the petition validity dates and other action taken. The initial approval period is up to three years, except that if the petitioner is a start-up operation, the approval period is limited to one year. Extensions of stay are granted in two-year increments. The dates of employment (admission and extension periods) must be within the statutory l
imits for the L category: seven years for executive and managerial employment, five for specialized knowledge. Consider any concurrent extension or change of status request in accordance with the procedures described in Chapter 30. Closing actions include preparation of the approval notice (CLAIMS-generated), forwarding of the approved petition to the appropriate consulate (if applicable) and disposition of the file in accordance with local procedures. See
8 CFR 214.2(l)(14)(ii)
for special requirements involving extension requests for “new office” cases.
Intermittent L-1 Status
The limitations on the maximum stay in L status do not apply to aliens whose employment in the United States is seasonal, intermittent, or an aggregate of six months or less per year. In addition, the limitations do not apply to aliens who reside abroad and regularly commute to the United States to engage in part-time employment. The burden is on the petitioner and the alien to establish that the alien qualifies for an exception.
Conversion from Specialized Knowledge to Executive / Manager Position
An L-1B specialized knowledge alien may change to an L-1A executive/manager to receive the benefits of the seven year limit of stay. The petitioner must have an I-129 petition approved in the alien's behalf as an executive or manager for six months to be able to receive the limitation of stay of seven years. This means that a specialized knowledge alien must have an I-129 approved as an executive or manager prior to his four and one half year period of stay in the United States. Remember that the work exper
ience outside the U.S. does not have to be in the same capacity as the proposed employment in the U.S.
Prepare and serve a formal denial order as described in
. Forward the petition in accordance with local procedures pending submission of an appeal or expiration of the appeal period. A denied petition for L classification is appealable to the Administrative Appeals Office.
Regulations do not provide appellate review of an alien's application for extension of stay. A decision to grant or deny the application is discretionary. Due process does not require USCIS to provide appellate review of the discretionary denial of an application for a benefit conferred on a nonimmigrant. When novel or unusually complex issues are presented, the application should receive supervisory-level review. An alien who believes that his or her application has been arbitrarily or erroneously denied m
ay file a motion to reopen or reconsider the case, request certification, or seek judicial relief. A denial of the extension of stay application requires no determination of whether the beneficiary meets L-1 standards; therefore, there is no decision on the petition to appeal. However, the petitioner is not precluded from filing a new petition in the alien's behalf.
Readjudication of L-1 Eligibility
The following are some exceptions to the above guidance on readjudication of L-1 eligibility:
Anti Job-Shop Provisions
. The L-1 Visa Reform Act, at section 412(a) of Pub. L. 108-447, Division J, Title IV, adds a new section 214(c)(2)(F) to the Immigration and Nationality Act, as amended (Act). New section 214(c)(2)(F) renders ineligible for L nonimmigrant classification a specialized knowledge worker if the worker will be “stationed primarily” at the worksite of an employer other than the petitioner or an affiliate, subsidiary, or parent and either (1) the alien will be “principally” under the “control and supervision” o
f the unaffiliated employer, or (2) the placement at the non-affiliated worksite is “essentially an arrangement to provide labor for hire for the unaffiliated employer,” rather than a placement in connection with the provision of a product or service for which specialized knowledge specific to the petitioning employer is necessary
. The new ground of ineligibility applies to all petitions filed on or after June 6, 2005. This includes petitions for initial, amended, or extended L classification. Thus, even if an alien worker holds or held L specialized knowledge status prior to June 6, 2005 and USCIS previously determined that the alien worker was eligible, the test for the new ground of ineligibility is to be applied to the petition. Adjudicators should not make a special effort to seek out these prior approvals, but should ass
ess these anti-job shop concerns as new or subsequent petitions arise for adjudication in the normal course of business.
Treaty investor classification and L-1 “new office” extensions
. Additional scrutiny should be given to petitions where the initial petition is granted to allow the petitioner and or/beneficiary to effectuate a tentative or prospective business plan or otherwise prospectively satisfy the requirements for the nonimmigrant classification. This includes treaty investor classification which may require a petitioner to be actively in the process of investing a substantial amount of capital in a bona fide enterprise, and the L-1 “new office” extension petitions. See
8 CFR 214.2(l)(14)(ii)
for special requirements involving extension requests for “new office” cases.