The L-1 visa permits a U.S. employer that has a qualifying relationship with a company abroad to transfer an employee who holds a managerial, executive or specialized knowledge role to one of its offices in the United States. The employee must have worked for the company abroad for at least one year out of the preceding three years in a managerial, executive or specialized knowledge role.
One issue that employers should consider when transferring employees to the U.S. is the impact to the L-1 visa if there are corporate changes to the company abroad. What if the company abroad merges with another company, or closes down entirely? Does this invalidate the L-1? The short answer is no, as long as the U.S. company continues to do business in another country besides the U.S. through another subsidiary, affiliate or branch office. However, if the closure of the company abroad means that the U.S. company is no longer doing business in any country outside the U.S., the L-1 petition would no longer be valid and the L-1 visa holder would need to switch to a new visa or leave the U.S.
The regulations require that the U.S. employer be doing business in the U.S. and at least one other country for the entire time the L-1 employee is in the U.S. In order for the L-1 to remain valid, there must be a company abroad with a qualifying relationship with the U.S. company (affiliate, branch, subsidiary, parent), that is also doing business. Doing business means that the entities are engaged in the regular, organized & ongoing provision of goods or services.
The important takeaway is that it is not a requirement that the foreign company that employed the L-1 visa holder remain operating, as long as the U.S. company has a qualifying relationship with another company abroad that is still operating. As an example, let us look at a U.S. company that has affiliates in France and Italy where the L-1 employee qualified for the visa based on their work for the French affiliate. If the French affiliate shuts down after the L-1 employee is in the U.S., It will not impact the L-1 petition as long as the Italian affiliate remains open and operating.
Although the closure of the foreign company that employed the L-1 visa holder will not impact the L-1 in this example, it would prevent the L-1 visa holder from qualifying for a green card under the EB-1C multinational manager/executive category. This category is often used for L-1A applicants who want to remain in the U.S. permanently on a green card. The EB-1C regulations state that the qualifying relationship must be between the U.S. company and the foreign company that employed the foreign national (or a successor in interest to the foreign company that employed the foreign national). If the L-1A visa holder wants to apply for a green card but is not eligible for the EB-1C due to the closure of the foreign company abroad, they may also consider applying for an EB-2 or EB-3 through the PERM process or, if the applicant is an owner of the company, they may consider an EB-2 through the National Interest Waiver category.
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