Immigration Law Insights

Now that the April 1, 2019 H-1B visa deadline has passed, thousands of employers may find themselves looking for an alternative to employ valuable foreign workers.  While not receiving as much media popularity as the H-1B program, there are various alternative approaches to avoid disruption with respect to foreign labor such as the E-2 and L-1 visa.  Each visa program has separate requirements that are important to keep in mind when establishing an appropriate immigration strategy.

The L-1 Intracompany Transferee

The L-1 Intracompany Transferee visa is available to employers with offices in both the United States and another country.  Importantly, the offices must have a “qualifying corporate relationship.”  The relationship is normally demonstrated through (1) ownership of both the foreign and U.S. operations by a common parent company (or individual) or (2) a parent/subsidiary relationship between the U.S. and foreign companies.

In order to qualify for an L-1 visa, the foreign national must have worked for the foreign entity in either a Managerial/Executive role or a Specialized Knowledge position for at least one of the most recent three years and must come to the United States to fill a Managerial/Executive or Specialized Knowledge position.

In order to qualify as an L-1 Manager, the employee must typically oversee the work of other supervisory-level or professional (working in a position requiring at least a Bachelor’s Degree) employees.  The employee could also qualify as an L-1 Manager if he or she has managerial responsibility for all aspects of a particular essential department, division, or function of the company (known as a “Functional Manager”).  For example, the employee may only directly supervise sales employees but still qualify as an L-1 Manager because he or she oversees the company’s entire Sales Division.  L-1 Managers typically have the authority to make personnel decisions or recommendations regarding personnel matters.

L-1 Executives typically fill a policy-setting and oversight role in the organization.  They establish goals and policies of the organization and receive only general supervision from higher level executives and/or the Board of Directors.  Generally, L-1 Managers and Executives can initially receive approval to live and work in the United States for up to three years and can extend their status in two-year increments, up to a total of seven years.

The final option under the L-1 program is the Specialized Knowledge Worker.  Specialized Knowledge Workers must have either special knowledge of a company’s products and its application in the marketplace or an advanced level of knowledge of processes and procedures of the company.  Companies with a highly technical process for manufacturing their products routinely use the Specialized Knowledge Worker classification to bring employees from abroad to ensure products are manufactured correctly in the United States.  A Specialized Knowledge Worker-strategy is also common when the company has implemented changes in their manufacturing process to increase efficiency abroad and seeks to send a worker from the foreign facility to implement the changes in the United States.  Foreign nationals in the L-1 Specialized Knowledge category can receive visa approval for three years with the opportunity for extensions up to a maximum of five years in L-1 status.

E-2 Treaty Investor

Another common employment-based visa is the E-2 Treaty Investor Visa.  The E-2 visa is available where there is a qualifying treaty between the United States and the foreign investor/foreign national employee’s country of nationality and there has been a substantial foreign investment in the United States business.  More than eighty countries currently hold E-2 treaties with the United States.  A full list of E-2 treaty countries can be found at the Department of State’s website.

To qualify for an E-2 visa, both the foreign national and the foreign investor must have the same nationality.  The foreign investor must have invested or be actively investing in the United States entity and the investment must be “substantial.”  What qualifies as a “substantial investment” varies depending on the type of business, but investments of at least $100,000.00 typically qualify under the regulatory interpretations.  The E-2 visa strategy can be used to sponsor the investor or the employee.  A potential employee must be coming to the United States to fill an Executive/Supervisory role or to serve as an Essential Employee (having skills necessary to the operation of the company in the United States).

While the L-1 visa requires a filing with the United States Citizenship and Immigration Services, E-2 visa applicants have the option to file immediately at the U.S. Consulate.  E-2 visas can be issued for up to five (5) years and can be renewed indefinitely.  Generally, E-2 entrants are given a two-year admission period.

The L-1 and E-2 strategies are just a few of the numerous employment-based immigration strategies.  Selecting the proper strategy requires working closely with immigration counsel to utilize the most practical option.  Burr & Forman LLP’s immigration team has experience helping clients’ obtain L-1, E-2, H-1B, and various other visas.