The L-1 Visa: Defining “Qualifying Relationship”

The L-1 nonimmigrant visa category is crafted for intracompany transferees. It facilitates the transfer of employees who have spent at least one year in qualifying employment abroad in roles encompassing executive, managerial, or specialized knowledge positions to a related U.S. business entity sharing a qualifying relationship.

Defining a “Qualifying Relationship”

A cornerstone of the L-1 visa application is establishing a “qualifying relationship” between the foreign entity and the U.S. petitioner. This relationship is deemed qualifying if the foreign entity is a parent, branch, subsidiary, or affiliate of the U.S. business entity. The essence of this visa category lies in ensuring the seamless transition of pivotal personnel to bolster the company’s operations within the United States.

• Parent: A legal entity owning and controlling its subsidiaries.
• Branch: An operating division or office of the same organization in a different location.
• Subsidiary: An entity majorly owned or controlled directly or indirectly by a parent entity, including joint ventures or entities under factual control despite lesser ownership.
• Affiliate: Entities owned and controlled by the same parent or individuals, with proportional ownership and control.

Maintaining L-1 Status Amid Organizational Changes

A concern arises when the L-1 beneficiary’s foreign employer ceases operations. The U.S. regulations specify that an L-1 beneficiary must have engaged in one year of qualifying employment abroad within the three years preceding their application for L-1 status. Moreover, a qualifying foreign organization must remain operational abroad for the L-1 beneficiary’s tenure in the U.S. This ensures that the L-1 visa facilitates the movement of staff within organizations actively engaged in business both in the U.S. and internationally.

Even if the foreign employer dissolves after the beneficiary’s qualifying employment abroad, L-1 status can still be obtained and maintained, provided other foreign operations are actively conducting business. This condition emphasizes the requirement for the qualifying organization to engage in regular, systematic, and continuous provision of goods and services, excluding mere presence or establishing an office or agent both in the U.S. and abroad. Such stipulations are outlined in 9 FAM 402.12-8, underlining the commitment to doing business as an employer in the U.S. and at least one other country.

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Citations

• 9 FAM 402.12-8 (U) outlines the criteria for “doing business,” requiring a qualifying organization under INA 101(a)(15)(L) to engage in continuous and systematic provision of goods or services in the U.S. and internationally.
• 9 FAM 402.12-8(B) (U) addresses transferring employees unattached to a foreign entity employed by a U.S. company that operates internationally.
• 8 CFR 214.2(l) mandates that a qualifying organization demonstrate its ongoing international business nature, ensuring the L classification isn’t used for self-employment or relocating foreign businesses entirely to the U.S.

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