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By eweek  |  Posted 2003-01-10 Email Print this article Print
 
 
 
 
 
 
 


: Readers Respond: L1s Slip Past H-1B Curbs"> Im a Certified (Texas) Immigration Specialist. L petitions can be "relatively" easy for large multinational corporations with U.S. operations in existence for over one year. For a smaller company or for one new to the U.S., it can be most difficult. The regulations are pasted below. Note the definitions of "managerial and executive capacity," and also of "specialized knowledge." Not every employee is going to qualify for L status.
Note also the limits of 214.2(l)(12)(i). Five years for specialized knowledge and seven years for managerial or executive capacity. Note also that you cant just switch to H status as the time in L status is counted against the H time limits and vice versa.
(l) Intracompany transferees— 214.2(l)(1) Admission of intracompany transferees—214.2(l)(1)(i) General. Under section 101(a)(15)(L) of the Act, an alien who within the preceding three years has been employed abroad for one continuous year by a qualifying organization may be admitted temporarily to the United States to be employed by a parent, branch, affiliate, or subsidiary of that employer in a managerial or executive capacity, or in a position requiring specialized knowledge. An alien transferred to the United States under this nonimmigrant classification is referred to as an intracompany transferee and the organization which seeks the classification of an alien as an intracompany transferee is referred to as the petitioner. The Service has responsibility for determining whether the alien is eligible for admission and whether the petitioner is a qualifying organization. These regulations set forth the standards applicable to these classifications. They also set forth procedures for admission of intracompany transferees and appeal of adverse decisions. Certain petitioners seeking the classification of aliens as intracompany transferees may file blanket petitions with the Service. Under the blanket petition process, the Service is responsible for determining whether the petitioner and its parent, branches, affiliates, or subsidiaries specified are qualifying organizations. The Department of State or, in certain cases, the Service is responsible for determining the classification of the alien. 214.2(l)(1)(ii) Definitions.
(A) Intracompany transferee means an alien who, within three years preceding the time of his or her application for admission into the United States, has been employed abroad continuously for one year by a firm or corporation or other legal entity or parent, branch, affiliate, or subsidiary thereof, and who seeks to enter the United States temporarily in order to render his or her services to a branch of the same employer or a parent, affiliate, or subsidiary thereof in a capacity that is managerial, executive, or involves specialized knowledge. Periods spent in the United States in lawful status for a branch of the same employer or a parent, affiliate, or subsidiary thereof and brief trips to the United States for business or pleasure shall not be interruptive of the one year of continuous employment abroad but such periods shall not be counted towards fulfillment of that requirement. (B) Managerial capacity means an assignment within an organization in which the employee primarily: (1) Manages the organization, or a department, subdivision, function, or component of the organization;
(2) Supervises and controls the work of other supervisory, professional, or managerial employees, or manages an essential function within the organization, or a department or subdivision of the organization;
(3) Has the authority to hire and fire or recommend those as well as other personnel actions (such as promotion and leave authorization) if another employee or other employees are directly supervised; if no other employee is directly supervised, functions at a senior level within the organizational hierarchy or with respect to the function managed; and
(4) Exercises discretion over the day-to-day operations of the activity or function for which the employee has authority. A first-line supervisor is not considered to be acting in a managerial capacity merely by virtue of the supervisors supervisory duties unless the employees supervised are professional. (C) Executive capacity means an assignment within an organization in which the employee primarily: (1) Directs the management of the organization or a major component or function of the organization;
(2) Establishes the goals and policies of the organization, component, or function;
(3) Exercises wide latitude in discretionary decision-making; and
(4) Receives only general supervision or direction from higher level executives, the board of directors, or stockholders of the organization. (D) Specialized knowledge means special knowledge possessed by an individual of the petitioning organizations product, service, research, equipment, techniques, management, or other interests and its application in international markets, or an advanced level of knowledge or expertise in the organizations processes and procedures. (E) "Specialized knowledge professional" means an individual who has specialized knowledge as defined in paragraph (l)(1)(ii)(D) of this section and is a member of the professions as defined in section 101(a)(32) of the Immigration and Nationality Act. (F) New office means an organization which has been doing business in the United States through a parent, branch, affiliate, or subsidiary for less than one year. (G) Qualifying organization means a United States or foreign firm, corporation, or other legal entity which: (1) Meets exactly one of the qualifying relationships specified in the definitions of a parent, branch, affiliate or subsidiary specified in paragraph (l)(1)(ii) of this section;
(2) Is or will be doing business (engaging in international trade is not required) as an employer in the United States and in at least one other country directly or through a parent, branch, affiliate, or subsidiary for the duration of the aliens stay in the United States as an intracompany transferee; and
(3) Otherwise meets the requirements of section 101(a)(15)(L) of the Act. (H) Doing business means the regular, systematic, and continuous provision of goods and/or services by a qualifying organization and does not include the mere presence of an agent or office of the qualifying organization in the United States and abroad. (I) "Parent" means a firm, corporation, or other legal entity which has subsidiaries. (J) "Branch" means an operating division or office of the same organization housed in a different location. (K) Subsidiary means a firm, corporation, or other legal entity of which a parent owns, directly or indirectly, more than half of the entity and controls the entity; or owns, directly or indirectly, half of the entity and controls the entity; or owns, directly or indirectly, 50 percent of a 50-50 joint venture and has equal control and veto power over the entity; or owns, directly or indirectly, less than half of the entity, but in fact controls the entity. (L) Affiliate means (1) One of two subsidiaries both of which are owned and controlled by the same parent or individual, or
(2) One of two legal entities owned and controlled by the same group of individuals, each individual owning and controlling approximately the same share or proportion of each entity, or
(3) In the case of a partnership that is organized in the United States to provide accounting services along with managerial and/or consulting services and that markets its accounting services under an internationally recognized name under an agreement with a worldwide coordinating organization that is owned and controlled by the member accounting firms, a partnership (or similar organization) that is organized outside the United States to provide accounting services shall be considered to be an affiliate of the United States partnership if it markets its accounting services under the same internationally recognized name under the agreement with the worldwide coordinating organization of which the United States partnership is also a member. (M) "Director" means a Service Center director with delegated authority at 8 CFR 103.1.


 
 
 
 
 
 
 
 
 
 
 

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