The L-1 Intra-company transfer visa
Under both the E-1 and the E-2 visa category, a qualifying company can employ “essential employees” from the Treaty country if this person will have supervisory and managerial functions in the company and/or “possess skills that are essential to the efficient operation of the business”. Accordingly, the candidate’s qualifications and the necessity to employ the foreign national over a U.S. worker (i.e. the availability of a U.S. worker or the possibility to train a U.S. worker) are closely scrutinized.
E Visas are generally applied for directly at a U.S. Embassy or Consulate at the non-immigrant alien’s country of citizenship or residency (visa granted for 2 years initially, further extensions of up to 5 years possible as long as investment or trade activity is maintained), or with the U.S. Citizenship & Immigration Services (visa granted only for 2 max. years). Filings in the U.S. can ask for Premium Processing by paying an additional fee. The visa can be renewed indefinitely as long as the individual and the company remain qualifying.
The spouse and unmarried children under the age of 21 may obtain a “Dependant/Beneficiary” E visa. The E spouse and children can attend school in the United States and the E spouse can obtain an independent employment authorization (E children are not permitted to be employed under their dependant beneficiary status).
The normal procedure for an E-1 or E-2 essential employee would be the labor certification process. However, E-1 Principal Traders and E-2 Principal Investors cannot file labor certifications because of their controlling interest in the qualifying company. However, there are other options for a Green Card.
Permanent Residence Application
L-1A executives and managers have the opportunity to directly file an immigrant petition without going through the labor certification process. The application can be filed once the U.S. company has been in active business for 1 year. Under the so-called “dual intent doctrine” the applicant can maintain and extend their L-1A status during the permanent residence application process and do not need to obtain separate employment authorizations and travel permits. The L-1A structure i.e. the relationship between the foreign and the U.S. company (at least 51% ownership) must be maintained during the whole period in L status and up to the granting of permanent residency.
(c) E. Rolff
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