Immigration

L-1A Executive Visas for Small Businesses – What Foreign Small Business Owners Need to Know

By November 15, 2021 No Comments

The L1A visa is a type of non-immigrant visa designed for executives of companies with dual presence: abroad and in the US.

In order to be eligible as an intracompany transferee the employee must have been continuously employed, on a full-time basis, by the foreign company in an executive or managerial capacity, or in a capacity requiring specialized knowledge, for at least one year in the immediately preceding three years before filing the L-Visa Petition. See INA § 101(a)(15)(L); see also 8 CFR 214.2(I)(1)(ii)(A). We’ll focus in this article on the executive type of L-1A.

An executive is someone who works:
1) Directing the management of the organization or a major component or function of it;
2) Establishing the goals and policies of the entity;
3) Exercising the wide latitude in discretionary decision-making; and
4) Receiving only general direction or supervision from higher-level executives, the board of directors, or stockholders.

8 CFR § 214.2(I)(1)(ii)(C).

In simple words, an executive is a manager’s manager. An executive is not a first-tier type of employee but an employee that makes important, company-wide decisions and that has at least two levels of employees under his/her supervision.

This requirement is very important to pay attention to because, especially in the context of small businesses, USCIS (the entity that approves the visa) will want to see that the company abroad has enough personnel to justify an “executive” position. In that sense, “executive” for purposes of the L-1A visa is more than just a label. Even the owner of the company will not qualify as an “executive” if he/she does not have the personnel to support the position. In practice, what we recommend our clients is that they have at a minimum of 8 employees abroad to be able to justify a company tree where the applicant has two levels of employees below him/her.

Companies with less than 8-employees in the home country, are very unlikely to be able to show that its application for an L-1A was an “executive” in the company abroad.

In our next blog article discussing L-1A visas, we’ll discuss how the “executive” requirements apply to the company in the US, and the challenges that small US businesses and start-ups can face when proving that they will create an “executive” position abroad. Stay tuned.

For more information about L-1A business visa, contact attorney Eduardo A. Maura at eduardo@ayalalawpa.com, call 305-570-2208, or text via WhatsApp from abroad at 305-699-7848.

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