Intracompany Transfers of Executives and Managers: Solutions for the Short Term and the Long Run

The ‘L-1’ visa for intracompany transferees is one of the visas most often used for businesspeople who wish either to work in the United States temporarily or to settle there permanently.

Basic Requirements
The L-1A visa requires that the applicant have been employed outside the United States for one continuous year in the previous three years, in a position that is managerial, executive, or requires the use of specialized knowledge, and that the applicant be transferring to a position (either managerial or executive) in the United States for the same or affiliated company. The L-1A visa, with extensions, allows for a maximum stay of 7 years in the United States.

The L-1B visa requires that the applicant have been employed outsida the United States for one continuous year in the previous three years, in a position that is managerial, executive, or requires the use of specialized knowledge, and that he be transferring to a position (one requiring specialized knowledge) in the United States for the same or affiliated company. The L-1B visa, with extensions, allows for a maximum stay of 5 years in the United States.

In order to qualify for the L-1 visa the non-US employer and the prospective employer in the US must be related in one of the four ways allowed by the regulations. First option: The two employers could be parent and subsidiary. It makes no difference which employer (US or non-US) is the parent, and which the subsidiary.

Second: One of the employers could be the branch office of the other. Again, the US employer may be either the headquarters or the branch office.

Third: The businesses could be sister companies—that is, they could be owned by a mutual parent.

Fourth: The companies could be affiliates, both owned by the same person or by the same group of people. If the companies are owned by a group of individuals each person in the group must have approximately the same percentage ownership of the US as of the non-US company.

Finally: In order to qualify for the L-1 visa the applicant must show that the non-US business will continue to actively trade (to be ‘doing business,’ in the words of the regulation) during the applicant’s stay in L-1 status. This can be difficult to prove if the non-US operation does not have many employees or if it is dependent on the activities of the very manager or executive hoping to move to the United States. In some cases it may be necessary to postpone a visa petition until staff can be trained or other provision made to ensure that the business can continue to operate in the home country whilst the visa applicant works in the US.

The Petition Procedure
In order to obtain an L-1 visa (either L-1A or L-1B) one must first file a petition with the US Citizenship and Immigration Services (‘USCIS’), seeking a determination that the applicant qualifies for L status. The petition must be filed with the USCIS Regional Service Center having jurisdiction over the location where the L applicant would be working. The USCIS charges a filing fee of $685.00 for each L petition.

The time needed by the Service Center to process an L petition can vary greatly. Current processing times may be found on the USCIS website at https://egov.immigration.gov/cris/jsps/ptimes.jsp;jsessionid=b--_LFqi27Zh

The USCIS portion of the processing time can be shortened by payment of an additional fee to the government. To take part in the ‘Premium Processing Service’ scheme one pays the USCIS a fee of $1000.00 (in addition to the standard filing fee of $685.00) and one is guaranteed a response from the USCIS within 15 calendar days of the receipt of the petition. The response need not be an approval notice; it could be a request for additional evidence. If the USCIS does not meet the 15-day deadline the $1000.00 is refunded.

Applying for the Visa
Once the USCIS approves the petition an approval notice is sent to the petitioner and/or petitioner’s representative. The beneficiary and any accompanying eligible family members may then apply to the appropriate US Embassy for issuance of the corresponding visas. Nearly all visa applicants between the ages of 14 and 79 (with certain limited exceptions) must now appear at the Embassy, have a brief interview with a consular officer and give finger scans (inkless digital finger prints) of his or her index fingers.

Here in London if at the interview the consular officer approves the application, the applicant’s passport is taken for visa issuance purposes and for routine applications returned via the Embassy’s courier service SMS in approximately 3 to 5 working days. This 3- to 5- working day period is the only time in the petition and application process during which an applicant is without his or her passport.

Your Stay in the United States
L-1 visas are typically issued for a period of three years, and may not to exceed the duration of the USCIS approval. However, if the US employer has not been doing business for at least one year at the time the petition is filed, the initial L-1 visa will be issued for a period of only one year. Extensions are available, in two-year increments, upon petition to the USCIS, and subject to the maximum stays of five or seven years, as mentioned above.

The L-1 visa, unlike most other visa types, offers a significant benefit to the L-2 spouse, in the form of an unrestricted employment authorization document (‘EAD’), better known as a work permit. The L-2 spouse may apply for the EAD after arrival in the US in L-2 status. Once the spouse has applied for and received the EAD he or she may lawfully accept employment and change jobs freely without the need for additional approvals from the USCIS.

Permanent Residence
A person who has served as either a manager or executive outside the US for at least one continuous year and who then is transferred to a managerial or axecutive position for a qualifying company in the US may be sponsored by the US employer for lawful permanent residence (a ‘green card’) as a ‘multinational executive or manager’. The US employer must have been actively trading for one year before it is eligible to sponsor an employee for lawful permanent residence. Any eventual permanent residence would include not only the primary applicant and spouse, but all qualifying children and stepchildren who are under the age of 21 at the time the immigrant petition is filed.

Since the requirements for a green card as a multinational executive or manager are very similar to those for an L-1A nonimmigrant visa, many L-1A visa holders may be able to progress to permanent residence in a relatively straightforward fashion. A petition for immigrant status would be filed with the relevant USCIS office for adjudication. The filing fee for an immigrant petition is currently $190.00; Premium Processing Service is not available to accelerate the processing of immigrant petitions. Once the petition is approved the beneficiary and qualifying family members proceed to obtain their green cards either through immigrant visa consular processing or by means of adjustment of status.

Conclusion
For qualifying businesspeople the procedures outlined above are attractive because they offer relatively quick, straightforward paths to temporary and/or permanent stays in the United States. A person who can qualify for an L-1A (for a manager or executive) will often qualify for an immigrant visa as a multinational executive or manager and be able to proceed from petition filing to immigrant visa and resultant green card within 18 to 24 months, bypassing the time-consuming and tedious test of the labour market known as ‘labor certification’.

This short article cannot possibly cover all permutations of the facts, and should not be relied upon as a substitute for legal advice tailored to the specifics of your situation. If you believe that legal advice would be helpful please contact us to schedule a consultation with one of our attorneys.

Not Just for Rocket Scientists: Green Cards for Aliens of Extraordinary Ability in Business1

By Susan Willis McFadden

Albert Einstein would have been eligible. So would Enrico Fermi and Victor Hess. They all would have been eligible for permanent resident status as aliens of extraordinary ability, based upon their receipt of “a major, international recognized award”—in their cases, the Nobel Prize in Physics.²

Aliens of extraordinary ability in the sciences, arts, education, business or athletics can qualify for lawful permanent residence in the first employment-based immigrant preference category.³ The extraordinary ability preference offers many advantages to the qualified applicant, among them the valuable option to self-petition, thereby dispensing with the need to obtain a sponsor.

Although potentially very useful to the world’s best and brightest, the preference category for aliens of extraordinary ability is very little used; in Fiscal Year 2003 only 1224 principal applicants obtained lawful permanent residence on this basis.⁴ It is our belief that qualified applicants have been discouraged from using the EB-1-1 category due to a mistaken impression that it is available only to the winners of major awards such as the Nobel, or to those persons outstanding in the arts or sciences.

However, “business” is specifically listed as one of the fields of endeavor as to which the EB-1-1 is available, and in fact many of the criteria used to prove extraordinary ability in the more familiar contexts of the arts and sciences can easily be adapted to benefit aliens who seek permanent residence in the United States based upon their success in business.
This article is designed to encourage aspiring permanent residents and their attorneys to consider immigrant petitions based upon extraordinary ability in business.

Legislative and Regulatory Background

The EB-1 immigrant visa for aliens of extraordinary ability (hereinafter “EB-1-1”) was created by the Immigration Act of 1990.⁵ That Act added a new subsection to the Immigration and Nationality Act⁶ and created five immigrant visa preference categories, including employment-based, special immigrants, and employment creation.

The first preference, for priority workers, includes aliens of extraordinary ability, and originally 40,000 visas were set aside for it. That allocation was changed in 1991 to its current level of 28.6% of the worldwide level.⁷

Eligible for treatment as aliens of extraordinary ability⁸ are those persons with:

Extraordinary ability in the sciences, arts, education, business, or athletics which has been demonstrated by sustained national or international acclaim and whose achievements have been recognized in the field through extensive documentation.⁹

In addition, the alien must demonstrate that (1) he seeks to enter the United States to continue work in the area of extraordinary ability, and (2) his entry will “substantially benefit prospectively the United States.”¹⁰

The legacy Immigration and Naturalization Service regulations on the subject define “extraordinary ability” as “a level of expertise indicating that the individual is one of that small percentage who have risen to the very top of the field of endeavor.”¹¹

Making the Case
The first step is to define the relevant field of endeavor. Your client may not be at the very top of all businesspeople world-wide, but could be at the top of all those involved in commercial passenger aviation, or financial journalism, or automobile manufacture. Define the field as narrowly as possible.

If the alien does not have a Nobel or other “major, international recognized award,” then one needs to produce evidence of at least three types from the list of 10 in 8 C.F.R. § 204.5(h)(3).¹² Let us review those criteria with particular attention to the types of documentation that might be available to businessmen and -women. Our experience and the examples we give are largely from the United Kingdom, but your client’s home country may well have equivalent resources that you can mine for material.

1. Lesser prizes or awards for excellence in the field of endeavor.
   Prizes may not be as typical for businesspeople as they are for athletes or artists, who routinely take part in competitions, but do not overlook this criterion. Groups such as trade associations and professional organizations often confer awards for excellence. Has the client been named “Man of the Year” by a chamber of commerce? Perhaps a manufacturers’ association has distinguished your client for her innovation in its field? Here in the UK the Confederation of British Industry bestows annual “Growing Business Awards,” which the Chancellor Gordon Brown has called “the business equivalent of the Oscars.”¹³
   
2. Membership in associations in the field, which associations require outstanding achievements, as judged by recognized experts in the field.
   Some business organizations may accept as members anyone with an interest and a check for the membership fee. Membership in such an organization is of no assistance in an EB-1-1 application. However, your client’s participation in a roundtable of well-regarded businesspeople is worth documenting. A British example: The business organization “Institute of Directors” offers several levels of membership, depending on the applicant’s qualifications and experience, and includes the level of “Fellow,” which is available only upon invitation of the Institute’s Board.¹⁴ Qualify the Board members as “experts in the field,” and selection of a client as a “Fellow” could fit this rubric.
   
3. Published material about the alien in professional or major trade publications or other major media, relating to the alien’s work in the field.
   Our experience shows that many businesspeople maintain scrapbooks of articles (at least the favorable ones) that mention their activities and achievements. Those scrapbooks can be replaced, or supplemented, by your own Internet research and by clipping services that can retrieve materials not available on the Internet. Entries from Who’s Who and other biographical dictionaries should be included. Do not overlook smaller, national biographical sources as well. One published in Great Britain has the helpful following criteria for inclusion: The subjects must be either British citizens, or foreign nationals working in Britain, “whose achievements have raised them to renown as leaders in their fields.”
   
4. Evidence of the alien’s original business-related contributions of major significance in the field
   Was your client the first to offer pay-as-you-go wireless telephone service in his country? Perhaps he created the first company in his area to offer data processing to US companies seeking to outsource that work? Such pioneering endeavors can often be proved through articles in the press. In addition to trade publications do not overlook “home town” or weekly newspapers which are often particularly interested in trumpeting a new product or service made available by a local resident. Letters from colleagues or other persons knowledgeable in the field can be of assistance here in explaining the significance of the contribution.
   
5. Performed in a leading or critical role for organizations or establishments that have a distinguished reputation.
   This is a natural choice for anyone who has held an important position at a successful company. Establish the company’s “distinguished reputation” and then show how important your client was to the company. For journalists, circulation figures for their periodicals should be obtained, and any distinguished history or reputation of the publication should be emphasized.
   
6. Evidence that the alien has commanded a high salary or other significantly high remuneration for services, in relation to others in the field.
   Many professional and trade organizations perform periodic salary surveys that can be used as comparison for your client, particularly if the survey is accompanied by an explanation of the statistical fine-points of the methodology. Although O*NET and other easily-available surveys can be convenient starting points their lack of detail (no breakdown into percentiles, for example) mean they will be of little help in showing that your client is at the very top of the salary scheme.
   
7. Other evidence.
   Do not overlook the regulations’ invitation to “submit comparable evidence” if the regulations listed “do not readily apply to the beneficiary’s occupation.”¹⁵ This can be one of the most fruitful areas for a lawyer with some creativity, for a prospective EB-1-1 in business will not have “evidence of commercial successes in the performing arts”¹⁶ but may be able to show great commercial success for the business or portion of a business he led. His work will not have been displayed “at artistic exhibitions or showcases,” but perhaps his business was used as a (favorable!) case study by a local business school. Ask your client such questions as: Was his company invited to take part in a display of the country’s businesses organized by the trade authorities?

Conclusion

Although the United Nations has proclaimed 2005 to be “International Year of Physics”¹⁷ , we practitioners of US immigration law should make it the year we prove to ourselves and our clients that it is not just rocket scientists, or Nobel Prize winners, who can qualify for the EB-1-1 and thereby obtain permanent residence in the United States.

______________________________________

¹ An earlier version of this article first appeared in the April 12, 2005 issue of Immigration Daily at http://www.ilw.com/lawyers/articles/2005,0412-mcfadden.shtm.
² The three won their Nobels for the years 1921 (Einstein), 1938 (Fermi) and 1936 (Hess). All three were naturalized as US citizens after their receipt of the Nobel—the German-born Einstein in 1940, Italian native Fermi and Austrian Hess in 1944. http://nobelprize.org/physics/laureates/index.html
³ The first preference also includes outstanding professors or researchers, and multinational executives or managers.
⁴ US Citizenship and Immigration Services, 2003 Yearbook of Immigration Statistics, Table 5. Available at http://uscis.gov/graphics/shared/aboutus/statistics/IMM03yrbk/IMM2003list.htm .
⁵ Immigration Act of 1990, Pub. L. No. 101-649, §121. It was effective October 1, 1991 (§161), far too late for Einstein, Fermi and Hess.
⁶ INA § 203(b), 8 U.S.C. § 1153(b).
⁷ Section 302(b)(2) of the Miscellaneous and Technical Immigration and Naturalization Amendments of 1991, Pub. L. No. 102-232.
⁸ The statute refers to aliens ‘with’ extraordinary ability, but the language of the body of the regulations (as opposed to the headings of same) speak of aliens ‘of’ extraordinary ability.
⁹ INA § 203(b)(1)(A)(i), 8 U.S.C. § 1153(b)(1)(A)(i).
¹⁰ INA § 203(b)(1)(A)(ii) and (iii), 8 U.S.C. § 1153(b)(1)(A)(ii) and (iii).
¹¹ 8 C.F.R. § 204.5(h)(2).
¹² Production of evidence of three of the 10 types however does not guarantee that the alien will be found eligible for the EB-1-1. See Notes of California Service Center/American Immigration Lawyers Association Liaison Meeting, May 2001, available on AILA InfoNet Doc. No. 01052403. Cf. Letter from Edward H. Skerrett to Nathan A. Waxman, June 15, 1995, posted on AILA InfoNet June 29, 1995 (EB-2 outstanding professor or researcher classification).
¹³ As quoted at www.growingbusinessawards.co.uk/main.htm .
¹⁴ See www.iod.com .
¹⁵ 8 C.F.R. § 204.5(h)(4).
¹⁶ 8 C.F.R. § 204.5(h)(3)(x).
¹⁷ Proclaimed by the United Nations on June 10, 2004, commemorating the centenary of Albert Einstein’s annus mirabilis in which he published landmark papers on special relativity, Brownian motion, and the photoelectric effect. http://www.un.org/News/Press/docs/2004/ga10243.doc.htm

I Married an Alien, Get Us Out of Here: Immigrant Visas for Spouses of US Citizens Living in the United Kingdom

Curse on all laws but those which love has made!
Alexander Pope, Eloisa to Abelard

Purpose of this Article
The Internet is replete with descriptions, accurate to a greater or lesser extent, of the procedure for obtaining permanent resident (‘green card’) status for a non US citizen spouse when the couple is living in the United States. However, there is not very much guidance available to Americans living in the United Kingdom as to how they can go about obtaining permission for their non US citizen spouses to settle permanently in the United States.

We therefore offer the following brief overview of the process, with the caveat that although all cases must go through the following steps, complications may arise and additional procedures may become necessary due to the facts of a particular case—perhaps the alien spouse has a criminal conviction, or necessary documents prove difficult to find.

Note: Although this article discusses the specific situation of sponsoring spouses, these procedures are also generally applicable to petitions filed by US citizens living in the United Kingdom who seek to sponsor other ‘immediate relatives’ such as an unmarried child under the age of 21 or a parent (if the US citizen is aged 21 or older). A UK-resident widow or widower of a US citizen may also file a petition on his or her own behalf if he or she was married to the US citizen for at least two years, files the petition within two years of the date of death, was not legally separated at the time of death, and has not remarried.

Filing the Forms, Collecting the Papers
If the US citizen half of a married couple is residing in the United Kingdom, the process of obtaining a US immigrant visa for the alien spouse begins with the filing of the US citizen’s ‘Petition for Alien Relative’ (with associated biographical forms and documents) with the US Citizenship and Immigration Services office of the Department of Homeland Security at the US Embassy in London. This petition is often known by its government form number, the ‘I-130.’

When the US citizen spouse has filed the I-130 petition the alien spouse will be advised by the Embassy’s Immigrant Visa Unit to file his or her immigrant visa application (DS-230 Part I) and, when the required documents have been obtained, to file the Form DS-2001 ‘Notification of Applicant Readiness’. The DS-230 Part I requires a good deal of biographical information about the applicant, including the places (city and country) he or she has lived for more than six months since the age of 16.

Once the Immigrant Visa Unit receives the DS-230 Part I it advises the applicant as to how to obtain any police certificates that may be required. Applicants 16 years of age and older are required to furnish police certificates to cover all period of residence of twelve months or more since reaching the age of 16; the period of residence is just six months for the country of birth or of current residence. For some countries clearances are not available, and for others they must be obtained directly by the US Government rather than by the applicant.

Once the applicant has all the needed papers, taking into account the particulars of the case (for example, certified copies of birth certificates, marriage certificates, divorce decrees, police certificates, conviction records, deed polls evidencing name changes), he or she notifies the Immigrant Visa Unit by filing the Form DS-2001 ‘Notification of Applicant Readiness.’

Medical Examination
When the Immigrant Visa Unit has received the DS-230 Part I and the DS-2001 it will complete its administrative clearances, notify the applicant of the date for his or her immigrant visa interview, and request the applicant to schedule the required medical examination with the Embassy’s designated provider. The examination should be scheduled in enough time to allow the applicant to receive the medical examination results before the immigrant visa interview, as they must be filed with the required supporting documents on the day of the visa appointment.

The examination screens applicants for HIV (predetermined to be a dangerous communicable disease), and for certain types of communicable diseases of public health significance, such as syphilis and tuberculosis. The applicant will also be checked to ensure that he is immunised against certain types of diseases. The immunisation requirements, which vary according to the age of the applicant, and information regarding the scope of the medical examination may be found at http://www.usembassy.org.uk/cons_new/visa/forms/Vachart.pdf.

Affidavit of Support
One of the documents that the applicant must take to the interview is the ‘Affidavit of Support’ (Form I-864) completed by the US citizen petitioner. In that Affidavit, required of all persons who sponsor family members for immigration to the United States, the US citizen spouse must demonstrate that he or she is able to support the alien spouse at an annual income of not less than 125 percent of the federal poverty level for a household of their size.

The Affidavit is a legally-enforceable promise to the effect that if the immigrant spouse receives any means-tested public benefits (either Federal, State or local) the US citizen will reimburse the government agency or private entity that provided those benefits. During the effectiveness of the Affidavit the US citizen spouse must keep the US Citizenship and Immigration Services advised of any changes in his or her address. This obligation continues until the US citizen spouse dies, or the alien spouse either (1) becomes a US citizen by naturalization, (2) works or can be credited with working 40 qualifying calendar quarters, (3) leaves the United States permanently, or (4) dies. Divorce does not terminate this obligation. If the US citizen spouse does not earn enough income or possess enough assets to satisfy the financial requirements for being a sponsor, the couple must find a qualified person willing to undertake the obligations of joint sponsorship. The joint sponsor must be a US citizen or legal permanent resident, 18 years or older, and domiciled in the United States.

The Interview
On the day and at the time appointed for the interview the applicant takes to the Embassy the required documents, including the results of his or her medical examination, and is interviewed by a consular officer. The applicant swears or affirms that the information given in the immigrant visa application is true, and signs it in the presence of the consular officer. Assuming that all has gone well, and that there are no last minute surprises, the applicant will be told that he or she will be issued the immigrant visa. The applicant then surrenders his or her passport to the Embassy so that the visa can be issued. The passport is returned with the visa and a packet of documents approximately two to three working days after the visa interview.

Becoming a Lawful Permanent Resident
The immigrant visa is valid for six months, during which time the immigrant must present it to an immigration officer at a US port of entry. At the port of entry the applicant will then be processed by the immigration authorities and will receive a stamp in his or her passport. When the processing is complete and the immigrant visa has been endorsed with the immigration authorities’ stamp the applicant becomes a lawful permanent resident. The endorsed visa serves as a temporary proof of that status; it is a temporary ‘green card.’ The permanent resident card, Form I-551, is then sent by post to the applicant’s designated address in the United States.

Conclusion
Shakespeare tells us that ‘The course of true love never did run smooth.’ Complex American immigration laws ensure that the course of emigration is likely to be similarly fraught.

We hope that this article has been a helpful overview of the procedures involved in obtaining an immigrant visa for the spouse of a US citizen and, by extension, in obtaining immigrant visas for unmarried children under 21 and parents of adult US citizens (aged 21 or older). However, it cannot possibly cover all permutations of the facts, and should not be relied upon as a substitute for legal advice tailored to the specifics of your situation. If you believe that legal advice would be helpful please contact us to schedule a consultation with one of our attorneys.