June 25, 2018

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The New H-1B

For all its publicity and popularity, the H-series visa is not the only option available to businesses that want to bring foreign nationals to work in the United States. Just a bit further up the alphabet is an alternative, often overlooked but just as useful: the L visa.

The L visa is available to people who have worked for a company in a foreign country which is a parent, subsidiary or affiliate of an American business. The person must have worked for the company in at least one of the last three years, in an executive, managerial or "specialized knowledge" capacity. But assuming those hurdles are met, a foreign national can secure a visa to let him work in the United States for as long as seven years.

What exactly does "managerial" or "executive" mean? The Immigration and Naturalization Service defines the terms as someone who manages people in jobs that require a college-level degree; someone who manages people who manage others; or someone who manages a key function of the business. Some of the criteria the INS uses to determine whether an alien qualifies as an executive or manager are: independent decision-making, ability to hire and fire employees, lack of supervision, high salary.

The "specialized knowledge" category is a bit more tricky. To qualify as such, the employee must demonstrate that he possesses specific knowledge related to the business, knowledge that is not easily available elsewhere.

Unfortunately, the INS has cracked down recently on the application process for L-1 visas in particular; the visas are somewhat more flexible than H-1B visas, so a few small entrepreneurs have abused the process by creating offshore shells and then "transfer" employees here or otherwise trying to bend the law. Because of the potential for misuse, INS increasingly subjects L applicants to strict scrutiny, especially applicants transferring from countries such as China, Russia and India and particularly transferring into new branch or subsidiary companies.

Sincere L visa applicants often face INS tactics to weed out fraudulent petitions. One precaution is a more stringent standard for newly established American subsidiaries. For such subsidiaries, INS can only approve an L-1 visa for one year. After that year, as long as the American operation has flourished, a staff has been hired, and the employee is performing managerial or skilled duties in accordance with INS requirements, an extension of the L-1 visa for up to three years may be available. Once the extension is approved for newly established American branches or subsidiaries, an application for permanent residency can be filed.

In our increasingly global economy, businesses face growing pressure to keep pace with demand for current skills and technology by hiring foreign nationals. Incorporating principles of diversity and flexibility is one way a company can improve its odds of success in the competitive arena, and the L and H visas are fundamental tools to achieve that end. Although partially marred by incidents of fraud, the L-1A and L-1B visas still represent a world of opportunities to foreign nationals and businesses looking to expand their horizons.

-By Margaret Wong

This article originally appeared in the December 2002 issue of the Purple Squirrel Intelligence Report. To start your subscription to the only newsletter dedicated to helping staffing professionals get more placements and increase revenues (and to get a special Charter Rate), Click Here