I own a company and wish to expand to the USA. Can I apply for an L visa?
If you own a company and wish to work and reside in the USA, both you and your company must meet certain qualifications to apply for an L work permit.
- there existed a qualifying relationship between the petitioner and the foreign entity at the time the petition was filed;
- sufficient physical premises to house the new office had been secured at the time the petition was filed; or that
- the U.S. entity would support a primarily managerial or executive position within one year of approval of the petition.
To establish L-1 eligibility, the petitioner must meet the criteria outlined in the Immigration and Nationality Act (INA), 8 U.S.C. § 1101(a)(15)(L). Specifically, within three years preceding the beneficiary’s application for admission into the United States, a qualifying organization must have employed the beneficiary in a qualifying managerial or executive capacity, or in a specialized knowledge capacity, for one continuous year.
In addition, the beneficiary must seek to enter the United States temporarily to continue rendering his or her services to the same employer or a subsidiary or affiliate thereof in a managerial, executive, or specialized knowledge capacity.
The first issue to address is whether a qualifying relationship exists between your foreign employer and the U.S. organization.
(i) Evidence that the petitioner and the organization which employed or will employ the alien are qualifying organizations as defined in paragraph (l)(1)(ii)(G) of this section.
Under the regulations, the term defined the “qualifying organization” and related terms as follows:
(G) Qualifying organization means a United States or foreign firm, corporation, or other legal entity which:
(1) Meets exactly one of the qualifying relationships specified in the definitions of a parent, branch, affiliate or subsidiary specified in paragraph (l)(1)(ii) of this section;
(2) Is or will be doing business (engaging in international trade is not required) as an employer in the United States and in at least one other country directly or through a parent, branch, affiliate or subsidiary for the duration of the alien’s stay in the United States as an intracompany transferee; and,
(3) Otherwise meets the requirements of section 101(a)(15)(L) of the Act.
(I) Parent means a firm, corporation, or other legal entity which has subsidiaries.
(J) Branch means an operating division or office of the same organization housed in a different location.
(K) Subsidiary means a firm, corporation, or other legal entity of which a parent owns, directly or indirectly, more than half of the entity and controls the entity; or owns, directly or indirectly, half of the entity and controls the entity; or owns, directly or indirectly, 50 percent of a 50-50 joint venture and has equal control and veto power over the entity; or owns, directly or indirectly, less than half of the entity, but in fact controls the entity.
(L) Affiliate means
(1) One of two subsidiaries both of which are owned and controlled by the same parent or individual, or
(2) One of two legal entities owned and controlled by the same group of individuals, each individual owning and controlling approximately the same share or proportion of each entity.
In WAC 03 231 50484, 2005, the USA company petitioned for a Non-immigrant Worker, the petitioner indicated that the U.S. entity is a subsidiary of the foreign entity and there is a qualifying relationship between the foreign and the USA company. The petitioner did not describe the stock ownership and managerial control of each company on Form I-129, but stated only that one or both is a “family-controlled corporation.” Aside from a letter from the foreign entity stating that the U.S. entity is 100% owned by the foreign entity, the petitioner did not submit with Form I-129 any supplemental documentation relating to the stock ownership and managerial control of the companies.
A request for further evidence RFE was issued among other things, the director requested evidence to establish that the foreign and U.S. entities have a qualifying relationship
The director noted that while the petition was filed on August 7, 2003, the evidence of record indicates that the qualifying relationship between the U.S. and foreign entities was not established until December 3, 2003, when 75,000 shares of the U.S. entity were issued to the foreign entity. As such, the petitioner failed to establish that the qualifying relationship between the two entities existed at the time of the petition’s filing.
These questions we see over and over during our consultation and we will try to address them in the near future:
Can an L1 visa be rejected?
What is the approval rate for L visa?
What documents should I include for an L visa?
What is required for an L visa?
What happens after 7 years of an L1A visa?
To avoid RFE, delay or refusal we at YA Law are here to help you. We have helped international companies establish themselves in the USA and send qualified workers to the USA. Contact to speak to one of our experienced team members at YA Law Corporation. Email:admin@yalaw.ca