The L-1A visa allows companies abroad that have qualifying relationships with U.S. companies to transfer employees to the U.S. For the L-1A, the employees must be coming to the U.S. to work in managerial or executive positions. For the L-1B, the employees must be coming to work in a specialized knowledge role. The employee being transferred to the U.S. must have worked for the company abroad for at least one continuous year within the past 3 years before filing for the L-1.
Company owners may qualify as L-1A managers or executives, however there are some unique considerations & issues that should be addressed in the L-1A application. Some of these considerations are discussed below.
- Is the owner a passive owner, or did they have an active role in the company? Even as an owner, the L-1A applicant must show that they worked for the company abroad for one year in a managerial, executive or specialized knowledge role. This means a passive owner who did not play a role in the company would not qualify for an L-1.
- Did the owner take a salary or collect some form of compensation? In general, evidence that shows the continuous year of work abroad consists of paystubs showing that the employee took a salary. Often a company’s owner will not take a salary but may take a draw or distribution from the company, either as needed or on a regular basis. In that case, the application should include proof of the distributions and an explanation of the compensation arrangement between the owner and the company.
- Will the company abroad continue to do business, even when the owner is transferred to the U.S.? To qualify for the L-1, the company abroad and the U.S. company must be doing business, meaning both companies must be engaged in the organized & ongoing provision of goods or services (or if the U.S. company is a new office, it must be ramping its operation to begin doing business once the L-1 employee arrives in the U.S.). The companies must continue to do business while the L-1 employee is in the U.S., meaning an owner cannot get an L-1 to come to the U.S. and plan to close down the company abroad once he arrives in the U.S. One possible exception is if the company continues to do business in another country, either directly or through another parent, branch, affiliate or subsidiary.
- Is this a temporary assignment and does the owner intend to return to the company abroad? The L-1 is a dual intent visa, meaning that L-1 visa holders are not required to maintain a foreign residence or show ties to their home country and they can have the intent to immigrate to the U.S. permanently without it affecting their ability to maintain their L-1 status. However, there is a provision in the L-1 regulations that requires an owner or major stockholder of a company to prove that they will only be in the U.S. on a temporary basis and will return abroad upon completion of temporary services. This does not mean that an owner of a company cannot eventually apply for a green card, but any green card application would need to take this requirement into account.
Although the E-2 investor visa is the often the first visa option that is discussed for entrepreneurs, the L-1 visa can also be a good option and should be considered for applicants from countries that are not eligible for the E-2, such as India and China.
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