If you are a foreign company that wants to transfer a manager or an executive to the United States to establish a new branch or subsidiary of your company, your manager could be eligible under the L1A visa. In this article, we go over the basic requirements, focusing on companies that are seeking to start a new business, and some of the common hurdles that are faced in fulfilling these requirements.
To qualify for an L1A as an individual, the employer must show that the American office has a qualifying affiliation with the foreign company, i.e. parent company, branch, subsidiary, or affiliate, and is currently or will be doing business as an employer in the United States. The individual who is being petitioned has to be able to show that they have been working in a managerial capacity for one year in the foreign company prior to coming the United States.
For a company that is starting a new branch in the United States, the employer must provide evidence that sufficient physical premises (i.e. an office, operating facility) has been acquired, and the company will within a year be able to support the managerial position that is being petitioned for.
A managerial position is one where the position is supervising professional employees. The managerial position is either one where they are “managing other managers,” or at the very least managing employees whose positions require a professional degree. Therefore the company will have to show that not only does the company support the position of the petitioned applicant, but also show that there will be professional employees that will be managed by the applicant.
With this brief summary, let’s cover three major hurdles that some companies face in fulfilling some of the above requirements:
» Keep Good Records
In some situations, companies may lack proper financial record keeping. This is especially true in the case of family-run businesses. Even if it is a large operation, if the company has not been keeping proper financial records, they may run into problems when trying to do an L1A application.
This is for two reasons: (1) USCIS wants to see a full financial picture of your company as it stands right now, and (2) USCIS wants to see that the manager who is being petitioned for is being paid by the company.
If the company is not keeping proper payroll records, employment records, and accounting, then you may run into some trouble. To avoid this, make sure you are keeping proper and diligent records. Certain countries, in particular India, get a higher level of scrutiny on L1 petitions. The more complete and full your financial record-keeping and payroll information, the more you will be able withstand this level of scrutiny. Our firm can help you in demonstrating the full financial picture and organizational structure of your company.
» Have a Plan
If you are opening up a new branch, you need to demonstrate that the branch you are opening will be up and running within a year. In other words, you need to show USCIS your game plan and the evidence supporting this plan. Ultimately, USCIS needs to be able to see that there’s a market for what you intend to do, your finances are such that you can support a new office, and that your company will be able to support the managerial position and the remaining employees. Our firm will assist you in
» Show the Applicant is a Manager
Another issue that often arises is in demonstrating that the individual will be working in a managerial capacity. This means that the person managing is not doing day to day tasks. For example, the manager is telling an employee with a professional degree to develop a computer program or to do the accounting. The manager himself is not doing the actual programming or accounting, but is telling someone else to complete the task. This is what USCIS likes to see when assessing a managerial position. The issue arises when the manager is caught up in doing day to day tasks instead of supervising those day to day tasks. There can also be issues that arise when your company is smaller, and the manager is supervising a smaller number of employees.
with our thorough and meticulous approach to these petitions, Shah Peerally Law Group can help you determine the best approach for your company in overcoming these and other hurdles when applying for the L1A. Contact us today at 510.742.5887 to get started with a consultation.