Though I am an optimist, I must concede that this is not the best of times for U.S. employers seeking foreign-born professionals. The fact is that there are simply not enough employment based visas (specifically, H-1B visas) to go around. As a result, many U.S. firms have to wait years to recruit the computer programmers, engineers, physicians, business executives and other professionals they need.

The good news is that there is no crunch in the “L-1” visa category. This category applies to foreign-born employees who work for a company overseas that has a parent, subsidiary, branch, or affiliate in the United States. Workers in the L-1 category come to the U.S. as “intra-company transferees” on a temporary basis to perform services either: 1) In a managerial or executive capacity (L-1A); or, 2) In a position requiring specialized knowledge (L-1B).

They perform these services for a parent, branch, subsidiary or affiliate of the same employer that employed them abroad. The employee must have been employed abroad for the corporation, firm, or other legal entity (or an affiliate or subsidiary thereof) on a full-time basis for a least one continuous year out of the last three year period to qualify. Currently, there is no cap on the number of L-1 visas issued each year. Unlike the H-1B, which is limited by an annual cap of 65,000, the L-1 is available to all those who qualify.

In addition, compensation paid to the transferee is not prescribed by the government, though pay must be sufficient to prevent the transferee from becoming a public charge.

In a global economy, the efficient transfer of foreign-born personnel from abroad to the U.S. is an absolute necessity. For example, an international company such as Toyota may wish to transfer a Tokyo-based manager or executive to a U.S. plant to oversee a new product launch. The ability to make that intra-company transfer quickly could mean the difference between a successful product introduction and a failure. Similarly, an American company such as Microsoft might require an Indian employee with specialized knowledge to help complete a major programming project. Transferring the employee rapidly could lead to early completion of the project and hence to a key competitive advantage.

Required documents
To obtain an L-1 for an intra-company transferee, a U.S. or a foreign employer must file an I-129 petition (the foreign employer must have a legal business in the U.S.) with the U.S. Citizenship and Immigration Services (CIS).

The petition must be filed with:

1. Evidence of the qualifying relationship between the U.S. and the foreign employer, which address ownership and control, such as an annual report, copies of articles of incorporation, financial statements or stock certificates.
2. A letter from the foreign worker’s foreign qualifying employer detailing his or her dates of employment, job duties, qualifications and salary and demonstrating that the foreign worker worked for the employer abroad for at least one continuous year within the three-year period before the filing of the petition in an executive or managerial capacity or in a position involving specialized knowledge.
3. A detailed description of the proposed job duties and qualifications and evidence the proposed employment is in an executive or managerial capacity or in a position involving specialized knowledge.

There are a variety of other documents that also must be filed if the worker is coming to the U.S. as a manager or executive (L-1A) to open or be employed by new office, or if the worker is coming to the U.S. in a specialized knowledge capacity (L1B) to open or be employed in a new office. These document requirements can be found on my web site at http:/www.shusterman.com/l-vsa.html.

Blanket petitions
Employers who regularly file L petitions may wish to consider filing for a “blanket” L petition in order to obtain continuing approval for itself and some or all of its parents, branches, subsidiaries and affiliates in the U.S. This simplifies the process of approving and admitting additional L-1A and L-1B workers. Documents required to obtain approval of a blanket L petition also are listed on my site as indicated above.

Dependents of L-1 workers (i.e., spouses and unmarried children under 21) are entitled to L-2 status. Dependents may be students in the U.S. while remaining in L-2 status, and spouses may apply for employment permission with the U.S. CIS under the L-2 classification. Should a company wish to obtain permanent residence (a green card) for an L-1A employee it does not have to go through the process of proving that no U.S. worker is willing or able to take the job (a process known as PERM). Companies do have to go through PERM, however, to obtain a green card for L-1B workers.

Obtaining L-1 status requires going through the often convoluted bureaucratic shuffle inherent to U.S. immigration processing. However, L-1 status, if applied for correctly, generally requires less hassle and paper work than applying for a variety of other immigration benefits. The key is knowledge of the system and timely, accurate and efficient submission of the necessary documentation. Given an efficient approach, recruiters and human resource personnel should be able to ensure the smooth transfer of key employees from foreign offices to the U.S.

Carl Shusterman served as a Trial Attorney with the U.S. Immigration and Naturalization Services and is principal of the Law Offices of Carl Shusterman (www.shusterman.com). He can be reached at 213-623-4592.