The L-1 visa permits a U.S. employer to transfer an employee with specialized knowledge relating to the organization’s interests or a manager/executive from one of its affiliated foreign offices to one of its offices in the United States.
One of the L-1 requirements is that both the U.S. and the foreign entities must be doing business. If the US entity is just starting operations, you can also prove that the US entity will be doing business (this is so called New Office L visa).
But what does “doing business” mean?
Federal Regulations define “doing business” as regular, systematic, and continuous provision of goods and/or services by a qualifying organization. It does not include the mere presence of an agent or office of the qualifying organization in the United States or abroad.
This means that just because you set up an entity in the U.S. and/or abroad does not mean that you will be able to qualify for the L1 visa, as if the entity was just set up but does not provide any services, you would not be able to meet the doing business requirement.
The most common scenario is, if both the U.S. and the foreign entity sell goods or provide services to clients, in their respective countries.
Example:
You own 100% in a consulting company in the UK that has been operating for 10 years. The company is successful, has 5 employees and has revenue of around 800,000 per year from providing consulting services to UK clients. You also own 100% in a US entity that provide consulting services, has been operating for 5 years and has 10 employees. The US company’s revenue is 2 million USD per year and it comes from providing consulting services to US clients.
In this case, the evidence of “doing business” would be pretty straightforward. You would submit each company’s tax returns showing revenues, payrolls and W-2s showing employees, and lease agreements for the office spaces. This is the most common scenario for an L1 visa, a situation when both entities are taking revenue from clients.
But what happens if one company is providing services to another related company and does not provide services directly to clients, therefore does not take revenue from clients?
Example:
You own 100% in a UK company and you own 100% in a US company. The US company sells products to clients in the U.S. but the UK company does not sell any products, it only provides services to the U.S., such as marketing services.
There was a recent case in 2015 (Matter of Leachen International, Inc.) discussing a similar situation. The AAO indicated that the definition of doing business in the Federal regulations does not contain a requirement that the goods or services have to be provided to an unaffiliated third party. Therefore, one related entity can provide services to another related entity, and still meet the “doing business” requirement.
This means, that in the example above, if the US entity is providing services to client, but the UK company is only providing services to the US company, the UK company could still meet the “doing business” requirement.
What kind of evidence should you submit in this scenario?
- Service agreement between the two related entities
- If one entity is getting paid by another, evidence of this (tax returns, bank transfers)
- Proof that the entity providing services has employees who do the work
- Proof that the entity providing services has an office space
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