Jian Joe Zhou, Attorney at Law

L-1A is a nonimmigrant visa category designed for the intra-company transfer of upper-level managers and executives in multi-national companies to the United States. The L-1A visa is a nonimmigrant visa, giving the visa holder temporary work authorization. However, a parallel employment-based category, the EB-1(c), allows this same group of aliens to apply for a green card.

The eligibility requirements for both the L-1A visa and EB-1(c) immigration petition are similar: (1) there must be a qualifying relationship between the U.S. petitioning entity where the applicant will work and the foreign entity where the applicant has worked; (2) the transferee must hold a managerial or executive-level position before and after being transferred; (3) the transferee must have worked for the foreign entity continuously for at least one of the past three years. Further, it is very common for employers who sponsor their transferees for L-1A visas to later file an EB-1(c) application on behalf of their transferees.

The L-1A visa is widely considered to be a necessary precursor to obtaining an EB-1(c). However, it should be emphasized that, while similar, the L-1A and the EB-1(c) are not directly connected and one does not necessitate the other.

The L-1A is not a prerequisite for the EB-1(c). An employer can file an EB-1(c) application directly, provided all EB-1(c) requirements are met. In fact, the beneficiary’s previous status is irrelevant to the success of an EB-1(c) application. The transferee does not even need to have visited or worked in the United States before filing an EB-1(c) petition. Meanwhile, because of subtle differences in the practical review standards for each visa, L-1A holders are not guaranteed EB-1(c) approval.

In practice, an employer may choose a temporary L-1A for a permanent transferee because of special EB-1(c) requirements. EB-1(c) rules require that the U.S. entity have been in “substantial operation” for at least one year before being eligible to file EB-1(c) applications. To be a “substantial operation,” the petitioner must demonstrate an established, sound corporate structure with a reasonable number of employees and level of revenue legitimating the need for the beneficiary’s high-level managerial or executive position. In contrast, the L-1A petitioner can be a new entity in the United States. So, for those who have just established new offices and require the immediate transfer of a manager or executive, but are not yet qualified to file an EB-1(c) application, the L-1A is a good, although not mandatory, option.

The L-1A never guarantees an EB-1(c), because, from the USCIS’s perspective, the L-1A is a temporary, non-immigrant visa, so they can be more lax in their petition review. If the requirements are not met in full, the USCIS still tends to be lenient and approve the visa, but grant a shorter duration than the maximum allowed under law. USCIS can then wait until a renewal is requested to determine if all the requirements are being met. The EB-1(c), however, grants permanent residence to the transferees, so the USCIS tends to conduct a strict investigation. For example, if a U.S. company with only a few employees but reasonable revenue is applying for an L-1A renewal, the USCIS will typically grant a 1- or 2-year extension instead of the normal 3-year visa so as to give the entity enough time to fully develop. In contrast, if the company is filing EB-1(c) petitions, the USCIS will likely deny a petition supported by weak evidence.

Nevertheless, in spite of these differences, and though not a legal prerequisite, holding an L-1A visa is still considered to be probative of eligibility for an EB-1(c) petition. In theory, and provided that circumstances have not substantially changed, if the USCIS approved the L-1A visa, then it should also approve a subsequent EB-1(c) application.

High-level managerial and executive workers seeking temporary nonimmigrant work also have options other than the L-1A. For example, if a transferee qualifies for the L-1A visa and also meets the requirements for the H or E visa, the employer may opt for the H or E visa, both of which are less complex and require less documentation. If the employer opts for the H or E visa, so long as the other necessary conditions are met, the employer is still free to file an EB-1(c) petition down the road.

Furthermore, an L-1A holder is not limited to the EB-1(c) category when pursuing a green card. As long as the petitioning entity and the transferee qualify, an L-1A holder can, for example, apply for a green card through the PERM labor certification process, under either the EB-2 or EB-3 category. Opting for this alternative may, however, delay green card approval because of visa retrogression which does not affect the EB-1(c) category.

In conclusion, L-1A can help strengthen an EB-1(c) case, but is neither a prerequisite nor a guarantee. The applicant and beneficiary will still need to carefully prepare all required proof in order to make a strong case when filing the EB-1(c) application.

*Attorney Jian Joe Zhou is the Co-managing attorney at Zhang & Associates, PC (www.hooyou.com). Joe has more than 8 years of experience in employment/business immigration and international law practice. Joe received his SJD, LLM, and MLI degrees from the University of Wisconsin Law School, and his LLB from East China University of Politics & Law. He may be reached at @hooyou.com">jzhou@hooyou.com The author would like to thank Lauren Miyamoto, Jiaying Ge, Tejas Shah and Stuart Tendler for their input and comments.