L1 Visa Lawyer Canada

L1 Visa Requirements 

Qualifying Relationship 

For an employer to meet the L-1 visa requirements, there must be a qualifying relationship between a foreign company and an employer that is currently or will be doing business in the United States. The U.S. and foreign businesses need not be in the same field. That relationship can be a parent/subsidiary relationship (the U.S. entity can either be the parent or subsidiary), a branch office relationship, or an affiliate relationship. The qualifying relationship need not have existed during the one-year period when the L-1 nonimmigrant worked abroad for the company. Also, the entity abroad that employed the L-1 nonimmigrant can cease operating or no longer be a part of the sponsoring company (often the case after a merger or acquisition) while the L-1 beneficiary is in the United States as long as the company maintains a related foreign entity for the duration of the L-1 period in the United States. 

Employment Abroad 

An L-1 nonimmigrant must have been employed abroad continuously for one year, within the three years preceding the time of his or her filing an L-1 petition, by a qualifying organization. The job abroad that is the basis of the L-1 petition doesn’t need to be immediately prior to the time period when an L-1 visa is sought as long as it is in the three years preceding filing for the L-1—the applicant can be working for another company at the time of filing. Brief trips to the United States for business won’t break the one-year continuous employment requirement, though days in the United States won’t count toward the one-year requirement. For example, someone who has traveled to the United States for ten days during the employee’s first year of employment abroad for a company won’t be eligible for an L-1 until one year and ten days after beginning work with the employer. 

It is still possible to qualify for an L-1 visa if one has come to the United States for more than a few weeks as long as the individual has continued to work for the foreign employer. For example, if the foreign employer sends the worker to participate in a training program in the United States on an H-3 visa that lasts for more than a year, the employment would still count toward maintaining continuous employment. However, the employee would still need to show working at least 365 days for the employer outside the United States. 

The 365 days of qualifying overseas employment must also have been in full-time status, and part-time employment may not be aggregated. However, there is an exception if work is divided among affiliate companies, each using the employee on a part-time basis, which can then constitute full-time employment if the aggregate time meets or exceeds the hours of a full-time job. 

Executive, Managerial, or Specialized Knowledge Capacity 

Executives and Managers 

The nonimmigrant must be coming to the United States in a capacity that is managerial, executive, or one that involves specialized knowledge. Managers and executives use the L-1A visa. Specialized- knowledge employees use the L-1B visa. L-1A visa holders can remain in L-1A status for up to seven years. L-1B visa holders can hold L-1B status for up to five years. Time spent abroad during the L-1 period may be recaptured if documentation of the time abroad can be presented. 

Specialized Knowledge Capacity 

In order to qualify under “Specialized Knowledge”, the beneficiary filed under the L-1B category and requires the L-1B petitioner to demonstrate that a beneficiary employee has “specialized knowledge” and have: 1) a “special” knowledge of the company product and its application in international markets; or 2) an “advanced” level of knowledge of the processes and procedures of the company. 

Evidence to Demonstrate Specialized or Advanced Knowledge

Petitioners should first submit a detailed description of the services to be performed as well as evidence of the beneficiary’s prior education, training, and employment qualifying them for the position. 

Specialized knowledge analysis does not involve a test of the U.S. labor market, and a petitioner does not need to show a lack of readily available workers to perform the relevant duties in the United States. The test is not whether workers in the United States are available but rather whether there are “so many such workers that the knowledge is generally or commonly held in the relevant industry, and thus not specialized.” If there are a lot of workers in the United States with similar knowledge to the beneficiary’s, the petitioning employer must show the beneficiary’s knowledge is truly specialized.

If there are other workers in the U.S. operation with the same specialized knowledge, the following factors will be considered by a USCIS examiner: 

• How the duties to be performed by the beneficiary that require his or her specialized knowledge may or may not differ from those already employed in the U.S. operations; 
• The extent to which the petitioner would suffer economic inconvenience or disruption to its U.S. or foreign-based operations if it were unable to transfer the beneficiary; 
• Whether the salary to be paid to the beneficiary is comparable to similarly situated peers in the U.S. operations. 

A specialized knowledge worker does not need to occupy a managerial or similar position or command a high salary compared to his or her peers. Rank and salary might be factors considered when analyzing whether a beneficiary has specialized knowledge, but there is no requirement that a beneficiary be of a certain rank or have a salary “elevated” compared to his or her peers. The memorandum notes that this is especially applicable to startups. 

Specialized knowledge L-1Bs who are later promoted to managers or executives can change from an L-1B status to L-1A status upon approval by USCIS. However, the employee must have been employed for at least six months in the managerial or executive position in order to be eligible for a stay of seven years or the change and extension of status must be requested before the L-1B has been in that status for four and a half years. 

Owners of Businesses 

An owner or shareholder of a business may qualify as an L-1 if the petition is accompanied by evidence that the beneficiary’s services are to be used for a temporary period and evidence that the beneficiary will be transferred to an assignment abroad upon the completion of the temporary services in the United States.8 

The petitioner must also establish that the foreign qualifying company will be doing business the entire time the owner or shareholder is in the United States as an L-1. 

New Offices

L-1 beneficiaries who are transferring to offices in the United States doing business for less than one year are subject to additional requirements. USCIS, not surprisingly, tends to apply greater scrutiny to these petitions. 

The main consequence of a “new office” petition is the length of time for which the L-1 petition will be approved. An initial L-1 for a new office will be approved for only one year versus up to three years for other L-1s. Also, only those who have worked as executives or managers abroad may seek L-1A visas for new offices. As noted above, a specialized knowledge employee abroad transferring to the United States to work as a manager or executive may seek an L-1A for other L-1 petitions. 

Dependents 

Spouses and children under the age of 21 can accompany an L-1 by using the L-2 visa. The period of stay for the L-2 corresponds to that of the L-1. If an L-2 applies for the visa at a consulate after the L-1 is already in the United States, then the applicant only needs to document the relationship to the L-1 and that the L-1 is in valid L-1 status in the United States. L-2 spouses may apply for employment authorization using Form I-765. 

As a result of litigation regarding long delays in adjudicating Employment Authorization Documents,  USCIS agreed to modify its policy with respect to L-2 spouse EADs and provide a limited automatic extension of an EAD that is expiring IF the following conditions are met:

• They timely filed a renewal Form I-765, Application for Employment Authorization, based on the same L-2 nonimmigrant status;
• They have an unexpired Form I-94 showing their status as an L-2 nonimmigrant.
• The automatic EAD extension will continue until whichever comes first:
• The end date on the dependent spouse’s Form I-94 showing valid L-2 nonimmigrant status;
• The date USCIS approves or denies the application to renew the EAD; or
• 180 days from the “Card Expires” date on the front of the EAD.
• Eligible L-2 dependent spouses may present the following evidence of the automatic EAD extension to employers for purposes of Form I-9, Employment Eligibility Verification:
• Form I-94 indicating the unexpired L-2 nonimmigrant status;
• Form I-797C for a timely-filed EAD renewal application (Form I-765) stating “Class requested” as “(a)(18)”; and
• The expired EAD issued under the same category, Category A18.

L-2S Classification

In late January 2022, CBP indicated they would follow a policy where for L-2 spouses entering the United Stated would be identified in their I-94s as having L2S designation which will make it possible for L-2 spouses to be able present documentation to an employer of work authorization. CBP will apparently not update I-94 records for L-2 spouses already in the United States before the L2S annotations start. 

Processing Notes 

I-129 petitions are filed with a USCIS service having jurisdiction over the state where the U.S. office is located. Spouses and children L-2 applications are filed using I-539. 

Canadian L-1 applicants file a form I-129 with U.S. Customs and Border Protection (CBP) at a port-of-entry on the Canadian-U.S. land border or at Pre-Clearance/Pre-Flight Inspection facilities (PFI) in Canada.17 Canadians can also file an I-129 with a USCIS Service Center, and if approved, may seek admission to the United States without a visa by use of the approval notice. If the CBP officer approves the application, they will issue an I-94 and then forward the approved I-129 to USCIS where a Form I-797 approval notice is issued.

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