In October 2011, the US Citizenship & Immigration Service began a new initiative called the “Entrepreneur in Residence” (EIR) program and launched a new interactive website a year later called “Entrepreneur Pathways,” intending to emphasize a new USCIS horizon in the usage of various visa types to welcome foreign investors to the United States. One of the visa categories listed in the new website is the intracompany transferee (L-1) visa.
The USCIS announced its intentions to work with the investor community and to become more pragmatic in the manner the agency reviews and adjudicates visa petitions and applications filed by international investors wishing to establish new businesses in the United States. The investor community and their immigration attorneys hailed the program as a step in the right direction to utilize various visa categories including the B-1 visitor’s visa, for example, and other unconventional visa categories as means to widen the visa path for international entrepreneurs to invest in the US.
Even after the introduction of the EIR initiative, the USCIS remains very cautious in the manner it reviews intracompany L-1 visa petitions. One can argue that the EIR did little to improve the adjudication personality of the USCIS when it comes to intracompany L-1 visa transfers. When planning to file an L-1 visa petition for a new or existing office, it is critical to work with competent immigration counsel specifically with experience in submitting intracompany L-1 visa petitions.
Intracompany Transferee L-1A Visa – A Very Attractive Path to US Permanent Residence for International Executives
It is easy to illustrate why the L-1A visa category for executives or managers is so attractive. Unlike any other nonimmigrant visa, the L-1A visa category is a relatively fast path to entering the US to operate a business. In order to qualify, the foreign investor need only to have had executive or managerial capacities in one out of the three years preceding his or her admission into the US. In addition, the foreign investor needs only to be coming to occupy an executive or managerial position in a company with a “qualifying business relationship” with the foreign business entity. A qualifying business relationship is one of four types defined by regulations and USCIS guidance manuals and memoranda: they must either by a parent/subsidiary, affiliate, joint venture or a branch office. However, the USCIS regulatory provisions have created enormous and detailed definitions requiring careful presentation in order to achieve L-1A visa petition approval.
Once the L-1A visa is approved, the foreign national can apply for an immigrant visa and permanent residence through the multi-national executive first preference immigrant visa category (EB-1). This strategy presents great advantages to foreign nationals in several ways:
- No Educational Requirement: unlike other immigrant visa categories such as second preference visa category (EB-2), the multinational executive does not have built-in educational prerequisites for acceptance into this category. So long as the foreign national meets the regulatory qualifications (executive/managerial and qualifying business relationship), they can apply. Obviously, however, the foreign national must clearly demonstrate that he or she is qualified as a manger or as an executive.
- No Priority Date Cutoff (Waiting Period): the multi-national executive category is in the First Preference employment based immigrant visa classification (EB-1). As of the posting of this article, processing times for immigrants of all nationalities are shown as current in the visa bulletin for this category. Hence, there is a big advantage in going the L-1A–to–EB-1 multinational executive route.
- No PERM Process. The EB-1 process does not require showing that the permanent employment of the foreign national in his or her position will not displace an equally qualified US worker. This is yet another advantage, one that yields savings in time and money. A PERM process takes 9 months including recruitment and case processing. If the PERM case is audited, one adds another year to the process.
The L-1A visa category offers great advantages and provides faster pathway to invest, reside, and later apply for permanent residence. Due to the aforementioned attractiveness, it is not a surprise that the L-1A visa is one of the most sought visa categories by foreign investors. Despite the declared Entrepreneur in Residence Initiative, the USCIS remains exceedingly critical in its adjudicatory posture. It is therefore critical to carefully plan the L-1A visa strategy with competent and experienced immigration counsel.