Immigration.com - L-1 Nonimmigrant pursuant to NAFTA

SECTION FOUR

L-1 Nonimmigrant pursuant to NAFTA

8CFR 214.2(l) - Intra Company Transferee 83
OI 214.2(l) 93
Inspectors Field Manual 15.4(l) 101
Requirements for admission 103
Extension of stay 108
Denial of "L" application 108
Spouse and Children 109
64 FR 29208 Adjustment of Status/Travel Interim Rule 110
Special Knowledge Memorandum 116
I-129 Processing Summary 119
I-129 Processing Summary - New Office 120

I-129 Processing Summary � Blanket Petition 121

8 CFR Sec. 214.2(l) Intracompany Transferees --

(1) Admission of intracompany transferees --

(i) General. Under section 101(a)(15)(L) of the Act, an alien who within the preceding three years has been

employed abroad for one continuous year by a qualifying organization may be admitted temporarily to the

United States to be employed by a parent, branch, affiliate, or subsidiary of that employer in a managerial or

executive capacity, or in a position requiring specialized knowledge. An alien transferred to the United States

under this nonimmigrant classification is referred to as an intracompany transferee and the organization which

seeks the classification of an alien as an intracompany transferee is referred to as the petitioner. The Service

has responsibility for determining whether the alien is eligible for admission and whether the petitioner is a

qualifying organization. These regulations set forth the standards applicable to these classifications. They also

set forth procedures for admission of intracompany transferees and appeal of adverse decisions. Certain

petitioners seeking the classification of aliens as intracompany transferees may file blanket petitions with the

Service. Under the blanket petition process, the Service is responsible for determining whether the petitioner

and its parent, branches, affiliates, or subsidiaries specified are qualifying organizations. The Department of

State or, in certain cases, the Service is responsible for determining the classification of the alien.

(ii) Definitions.

(A) Intracompany transferee means an alien who, within three years preceding the time of his or her application

for admission into the United States, has been employed abroad continuously for one year by a firm or

corporation or other legal entity or parent, branch, affiliate, or subsidiary thereof, and who seeks to enter the

United States temporarily in order to render his or her services to a branch of the same employer or a parent,

affiliate, or subsidiary thereof in a capacity that is managerial, executive, or involves specialized knowledge.

Periods spent in the United States in lawful status for a branch of the same employer or a parent, affiliate, or

subsidiary thereof and brief trips to the United States for business or pleasure shall not be interruptive of the one

year of continuous employment abroad but such periods shall not be counted towards fulfillment of that

requirement.

(B) Managerial capacity means an assignment within an organization in which the employee primarily:

((1)) Manages the organization, or a department, subdivision, function, or component of the organization;

((2)) Supervises and controls the work of other supervisory, professional, or managerial employees, or manages

an essential function within the organization, or a department or subdivision of the organization;

((3)) Has the authority to hire and fire or recommend those as well as other personnel actions (such as

promotion and leave authorization) if another employee or other employees are directly supervised; if no other

employee is directly supervised, functions at a senior level within the organizational hierarchy or with respect to

the function managed; and

((4)) Exercises discretion over the day-to-day operations of the activity or function for which the employee has

authority. A first-line supervisor is not considered to be acting in a managerial capacity merely by virtue of the

supervisor's supervisory duties unless the employees supervised are professional.

((1)) Directs the management of the organization or a major component or function of the organization;

((2)) Establishes the goals and policies of the organization, component, or function;

((3)) Exercises wide latitude in discretionary decision-making; and

((4)) Receives only general supervision or direction from higher level executives, the board of directors, or

stockholders of the organization.

(D) Specialized knowledge means special knowledge possessed by an individual of the petitioning

organization's product, service, research, equipment, techniques, management, or other interests and its application in international markets, or an advanced level of knowledge or expertise in the organization's

processes and procedures.

(E) "Specialized knowledge professional" means an individual who has specialized knowledge as defined in

paragraph (l)(1)(ii)(D) of this section and is a member of the professions as defined in section 101(a)(32) of the

Immigration and Nationality Act.

(F) New office means an organization which has been doing business in the United States through a parent,

branch, affiliate, or subsidiary for less than one year.

(G) Qualifying organization means a United States or foreign firm, corporation, or other legal entity which:

((1)) Meets exactly one of the qualifying relationships specified in the definitions of a parent, branch, affiliate or

subsidiary specified in paragraph (l)(1)(ii) of this section;

((2)) Is or will be doing business (engaging in international trade is not required) as an employer in the United

States and in at least one other country directly or through a parent, branch, affiliate, or subsidiary for the

duration of the alien's stay in the United States as an intracompany transferee; and

((3)) Otherwise meets the requirements of section 101(a)(15)(L) of the Act.

(H) Doing business means the regular, systematic, and continuous provision of goods and/or services by a

qualifying organization and does not include the mere presence of an agent or office of the qualifying

organization in the United States and abroad.

(I) "Parent" means a firm, corporation, or other legal entity which has subsidiaries.

(J) "Branch" means an operating division or office of the same organization housed in a different location.

(K) Subsidiary means a firm, corporation, or other legal entity of which a parent owns, directly or indirectly, more

than half of the entity and controls the entity; or owns, directly or indirectly, half of the entity and controls the

entity; or owns, directly or indirectly, 50 percent of a 50-50 joint venture and has equal control and veto power

over the entity; or owns, directly or indirectly, less than half of the entity, but in fact controls the entity.

(L) Affiliate means

((1)) One of two subsidiaries both of which are owned and controlled by the same parent or individual, or

((2)) One of two legal entities owned and controlled by the same group of individuals, each individual owning

and controlling approximately the same share or proportion of each entity, or

((3)) In the case of a partnership that is organized in the United States to provide accounting services along with

managerial and/or consulting services and that markets its accounting services under an internationally

recognized name under an agreement with a worldwide coordinating organization that is owned and controlled

by the member accounting firms, a partnership (or similar organization) that is organized outside the United

States to provide accounting services shall be considered to be an affiliate of the United States partnership if it

markets its accounting services under the same internationally recognized name under the agreement with the

worldwide coordinating organization of which the United States partnership is also a member.

(M) "Director" means a Service Center director with delegated authority at 8 CFR 103.1.

(2) Filing of petitions --

(i) Except as provided in paragraph (l)(2)(ii) and (l)(17) of this section, a petitioner seeking to classify an alien as

an intracompany transferee shall file a petition on Form I-129, Petition for Nonimmigrant Worker, only at the

Service Center which has jurisdiction over the area where the alien will be employed, even in emergent

situations. The petitioner shall advise the Service whether it has filed a petition for the same beneficiary with

another office, and certify that it will not file a petition for the same beneficiary with another office, unless the

circumstances and conditions in the initial petition have changed. Failure to make a full disclosure of previous

petitions filed may result in a denial of the petition.

(ii) A United States petitioner which meets the requirements of paragraph (l)(4) of this section and seeks

continuing approval of itself and its parent, branches, specified subsidiaries and affiliates as qualifying

organizations and, later, classification under section 101(a)(15)(L) of multiple numbers of aliens employed by

itself, its parent, or those branches, subsidiaries, or affiliates may file a blanket petition on Form I - 129 with the

director having jurisdiction over the area where the petitioner is located. The blanket petition shall be

adjudicated and maintained at the appropriate Service Center. Approved blanket petition files shall be

maintained indefinitely by that Service Center. The petitioner shall be the single representative for the qualifying

organizations with which the Service will deal regarding the blanket petition.

(3) Evidence for individual petitions. An individual petition filed on Form I - 129 shall be accompanied by:

(i) Evidence that the petitioner and the organization which employed or will employ the alien are qualifying

organizations as defined in paragraph (l)(1)(ii)(G) of this section.

(ii) Evidence that the alien will be employed in an executive, managerial, or specialized knowledge capacity,

including a detailed description of the services to be performed.

(iii) Evidence that the alien has at least one continuous year of full-time employment abroad with a qualifying

organization within the three years preceding the filing of the petition.

(iv) Evidence that the alien's prior year of employment abroad was in a position that was managerial, executive,

or involved specialized knowledge and that the alien's prior education, training, and employment qualifies

him/her to perform the intended services in the United States; however, the work in the United States need not

be the same work which the alien performed abroad.

(v) If the petition indicates that the beneficiary is coming to the United States as a manager or executive to open

or to be employed in a new office in the United States, the petitioner shall submit evidence that:

(A) Sufficient physical premises to house the new office have been secured;

(B) The beneficiary has been employed for one continuous year in the three year period preceding the filing of

the petition in an executive or managerial capacity and that the proposed employment involved executive or

managerial authority over the new operation; and

executive or managerial position as defined in paragraphs (l)(1)(ii)(B) or (C) of this section, supported by

information regarding:

((1)) The proposed nature of the office describing the scope of the entity, its organizational structure, and its

financial goals;

((2)) The size of the United States investment and the financial ability of the foreign entity to remunerate the

beneficiary and to commence doing business in the United States; and

((3)) The organizational structure of the foreign entity.

(vi) If the petition indicates that the beneficiary is coming to the United States in a specialized knowledge

capacity to open or to be employed in a new office, the petitioner shall submit evidence that:

(A) Sufficient physical premises to house the new office have been secured;

(B) The business entity in the United States is or will be a qualifying organization as defined in paragraph

(l)(1)(ii)(G) of this section; and

United States.

(vii) If the beneficiary is an owner or major stockholder of the company, the petition must be accompanied by

evidence that the beneficiary's services are to be used for a temporary period and evidence that the beneficiary

will be transferred to an assignment abroad upon the completion of the temporary services in the United States.

(viii) Such other evidence as the director, in his or her discretion, may deem necessary.

(4) Blanket petitions --

(i) A petitioner which meets the following requirements may file a blanket petition seeking continuing approval of

itself and some or all of its parent, branches, subsidiaries, and affiliates as qualifying organizations if:

(A) The petitioner and each of those entities are engaged in commercial trade or services;

(B) The petitioner has an office in the United States that has been doing business for one year or more;

(D) The petitioner and the other qualifying organizations have obtained approval of petitions for at least ten "L"

managers, executives, or specialized knowledge professionals during the previous 12 months; or have U.S.

subsidiaries or affiliates with combined annual sales of at least $25 million; or have a United States work force of

at least 1,000 employees.

(ii) Managers, executives, and specialized knowledge professionals employed by firms, corporations, or other

entities which have been found to be qualifying organizations pursuant to an approved blanket petition may be

classified as intracompany transferees and admitted to the United States as provided in paragraphs (l) (5) and

(11) of this section.

(iii) When applying for a blanket petition, the petitioner shall include in the blanket petition all of its branches,

subsidiaries, and affiliates which plan to seek to transfer aliens to the United States under the blanket petition.

An individual petition may be filed by the petitioner or organizations in lieu of using the blanket petition

procedure. However, the petitioner and other qualifying organizations may not seek L classification for the same

alien under both procedures, unless a consular officer first denies eligibility. Whenever a petitioner which has

blanket L approval files an individual petition to seek L classification for a manager, executive, or specialized

knowledge professional, the petitioner shall advise the Service that it has blanket L approval and certify that the

beneficiary has not and will not apply to a consular officer for L classification under the approved blanket

petition.

(iv) Evidence. A blanket petition filed on Form I - 129 shall be accompanied by:

(A) Evidence that the petitioner meets the requirements of paragraph (l)(4)(i) of this section.

(B) Evidence that all entities for which approval is sought are qualifying organizations as defined in

subparagraph (l)(1)(ii)(G) of this section.

(5) Certification and admission procedures for beneficiaries under blanket petition.

(i) Jurisdiction. United States consular officers shall have authority to determine eligibility of individual

beneficiaries outside the United States seeking L classification under blanket petitions, except for visa-exempt

nonimmigrants. An application for a visa-exempt nonimmigrant seeking L classification under a blanket petition

or by an alien in the United States applying for change of status to L classification under a blanket petition shall

be filed with the Service office at which the blanket petition was filed.

(ii) Procedures.

(A) When one qualifying organization listed in an approved blanket petition wishes to transfer an alien outside

the United States to a qualifying organization in the United States and the alien requires a visa to enter the

United States, that organization shall complete Form I - 129S, Certificate of Eligibility for Intracompany

Transferee under a Blanket Petition, in an original and three copies. The qualifying organization shall retain one

copy for its records and send the original and two copies to the alien. A copy of the approved Form I - 797 must

be attached to the original and each copy of Form I - 129S.

(B) After receipt of Form I - 797 and Form I - 129S, a qualified employee who is being transferred to the United

States may use these documents to apply for visa issuance with the consular officer within six months of the

date on Form I - 129S.

alien is in the United States and is seeking a change of status from another nonimmigrant classification to L

classification under a blanket petition, the petitioner shall submit Form I-129S, Certificate of Eligibility, and a

copy of the approval notice, Form I-797, to the Service Center with which the blanket petition was filed.

(D) The consular or Service officer shall determine whether the position in which the alien will be employed in

the United States is with an organization named in the approved petition and whether the specific job is for a

manager, executive, or specialized knowledge professional. The consular or Service officer shall determine

further whether the alien's immediate prior year of continuous employment abroad was with an organization

named in the petition and was in a position as manager, executive, or specialized knowledge professional.

(E) Consular officers may grant "L" classification only in clearly approvable applications. If the consular officer

determines that the alien is eligible for L classification, the consular officer may issue a nonimmigrant visa,

noting the visa classification "Blanket L - 1" for the principal alien and "Blanket L - 2" for any accompanying or

following to join spouse and children. The consular officer shall also endorse all copies of the alien's Form I -129S

with the blanket L - 1 visa classification and return the original and one copy to the alien. When the alien is

inspected for entry into the United States, both copies of the Form I - 129S shall be stamped to show a validity

period not to exceed three years and the second copy collected and sent to the appropriate Regional Service

Center for control purposes. Service officers who determine eligibility of aliens for L - 1 classification under

blanket petitions shall endorse both copies of Form I - 129S with the blanket L - 1 classification and the validity

period not to exceed three years and retain the second copy for Service records.

(F) If the consular officer determines that the alien is ineligible for L classification under a blanket petition, the

consular officer's decision shall be final. The consular officer shall record the reasons for the denial on Form I -129S,

retain one copy, return the original of I - 129S to the Service office which approved the blanket petition,

and provide a copy to the alien. In such a case, an individual petition may be filed for the alien with the director

having jurisdiction over the area of intended employment; the petition shall state the reason the alien was

denied L classification and specify the consular office which made the determination and the date of the

determination.

(G) An alien admitted under an approved blanket petition may be reassigned to any organization listed in the

approved petition without referral to the Service during his/her authorized stay if the alien will be performing

virtually the same job duties. If the alien will be performing different job duties, the petitioner shall complete a

new Certificate of Eligibility and send it for approval to the director who approved the blanket petition.

(6) Copies of supporting documents. The petitioner may submit a legible photocopy of a document in support of

the visa petition, in lieu of the original document. However, the original document shall be submitted if

requested by the Service.

(7) Approval of petition --

(i) General. The director shall notify the petitioner of the approval of an individual or a blanket petition within 30

days after the date a completed petition has been filed. If additional information is required from the petitioner,

the 30 day processing period shall begin again upon receipt of the information. Only the Director of a Service

Center may approve individual and blanket L petitions. The original Form I-797 received from the Service with

respect to an approved individual or blanket petition may be duplicated by the petitioner for the beneficiary's use

as described in paragraph (l)(13) of this section.

(A) Individual petition --

(1) Form I - 797 shall include the beneficiary's name and classification and the petition's period of validity.

(2) An individual petition approved under this paragraph shall be valid for the period of established need for the

beneficiary's services, not to exceed three years, except where the beneficiary is coming to the United States to

open or to be employed in a new office.

(3) If the beneficiary is coming to the United States to open or be employed in a new office, the petition may be

approved for a period not to exceed one year, after which the petitioner shall demonstrate as required by

paragraph (l)(14)(ii) of this section that it is doing business as defined in paragraph (l) (1)(ii)(H) of this section to

extend the validity of the petition.

(B) Blanket petition --

(1) Form I - 797 shall identify the approved organizations included in the petition and the petition's period of

validity.

(2) A blanket petition approved under this paragraph shall be valid initially for a period of three years and may

be extended indefinitely thereafter if the qualifying organizations have complied with these regulations.

(3) A blanket petition may be approved in whole or in part and shall cover only qualifying organizations.

petition was filed to reflect changes in approved relationships, additional qualifying organizations under a

blanket petition, change in capacity of employment (i.e., from a specialized knowledge position to a managerial

position), or any information which would affect the beneficiary's eligibility under section 101(a)(15)(L) of the Act.

(ii) Spouse and dependents. The spouse and unmarried minor children of the beneficiary are entitled to L

nonimmigrant classification, subject to the same period of admission and limits as the beneficiary, if the spouse

and unmarried minor children are accompanying or following to join the beneficiary in the United States. Neither

the spouse nor any child may accept employment unless he or she has been granted employment authorization.

(8) Denial of petition --

(i) Notice of intent to deny. When an adverse decision is proposed on the basis of evidence not submitted by the

petitioner, the director shall notify the petitioner of his or her intent to deny the petition and the basis for the

denial. The petitioner may inspect and rebut the evidence and will be granted a period of 30 days from the date

of the notice in which to do so. All relevant rebuttal material will be considered in making a final decision.

(ii) Individual petition. If an individual petition is denied, the petitioner shall be notified within 30 days after the

date a completed petition has been filed of the denial, the reasons for the denial, and the right to appeal the

denial.

(iii) Blanket petition. If a blanket petition is denied in whole or in part, the petitioner shall be notified within 30

days after the date a completed petition has been filed of the denial, the reasons for the denial, and the right to

appeal the denial. If the petition is denied in part, the Service Center issuing the denial shall forward to the

petitioner, along with the denial, a Form I-797 listing those organizations which were found to qualify. If the

decision to deny is reversed on appeal, a new Form I-797 shall be sent to the petitioner to reflect the changes

made as a result of the appeal.

(9) Revocation of approval of individual and blanket petitions --

(i) General. The director may revoke a petition at any time, even after the expiration of the petition.

(ii) Automatic revocation. The approval of any individual or blanket petition is automatically revoked if the

petitioner withdraws the petition or the petitioner fails to request indefinite validity of a blanket petition.

(iii) Revocation on notice.

(A) The director shall send to the petitioner a notice of intent to revoke the petition in relevant part if he/she finds

that:

(1) One or more entities are no longer qualifying organizations;

(2) The alien is no longer eligible under section 101(a)(15)(L) of the Act;

(3) A qualifying organization(s) violated requirements of section 101(a)(15)(L) and these regulations;

(4) The statement of facts contained in the petition was not true and correct; or

(5) Approval of the petition involved gross error; or

(6) None of the qualifying organizations in a blanket petition have used the blanket petition procedure for three

consecutive years.

(B) The notice of intent to revoke shall contain a detailed statement of the grounds for the revocation and the

time period allowed for the petitioner's rebuttal. Upon receipt of this notice, the petitioner may submit evidence in

rebuttal within 30 days of the notice. The director shall consider all relevant evidence presented in deciding

whether to revoke the petition in whole or in part. If a blanket petition is revoked in part, the remainder of the

petition shall remain approved, and a revised Form I - 797 shall be sent to the petitioner with the revocation

notice. (iv) Status of beneficiaries. If an individual petition is revoked, the beneficiary shall be required to leave

the United States, unless the beneficiary has obtained other work authorization from the Service. If a blanket

petition is revoked and the petitioner and beneficiaries already in the United States are otherwise eligible for L

classification, the director shall extend the blanket petition for a period necessary to support the stay of those

blanket L beneficiaries. The approval notice, Form I - 171C, shall include only the names of qualifying

organizations and covered beneficiaries. No new beneficiaries may be classified or admitted under this limited

extension.

(10) Appeal of denial or revocation of individual or blanket petition --

(i) A petition denied in whole or in part may be appealed under 8 CFR part 103. Since the determination on the

Certificate of Eligibility, Form I-129S, is part of the petition process, a denial or revocation of approval of an I-129S

is appealable in the same manner as the petition.

(ii) A petition that has been revoked on notice in whole or in part may be appealed under Part 103 of this

chapter. Automatic revocations may not be appealed.

(11) Admission. A beneficiary may apply for admission to the United States only while the individual or blanket

petition is valid. The beneficiary of an individual petition shall not be admitted for a date past the validity period

of the petition. The beneficiary of a blanket petition may be admitted for three years even though the initial

validity period of the blanket petition may expire before the end of the three-year period. If the blanket petition

will expire while the alien is in the United States, the burden is on the petitioner to file for indefinite validity of the

blanket petition or to file an individual petition in the alien's behalf to support the alien's status in the United

States. The admission period for any alien under section 101(a)(15)(L) shall not exceed three years unless an

extension of stay is granted pursuant to paragraph (l)(15) of this section.

(12) L-1 limitation on period of stay.

(i) Limits. An alien who has spent five years in the United States in a specialized knowledge capacity or seven

years in the United States in a managerial or executive capacity under section 101(a)(15)(L) and/or (H) of the

Act may not be readmitted to the United States under section 101(a)(15)(L) or (H) of the Act unless the alien has

resided and been physically present outside the United States, except for brief visits for business or pleasure,

for the immediate prior year. Such visits do not interrupt the one year abroad, but do not count towards

fulfillment of that requirement. In view of this restriction, a new individual petition may not be approved for an

alien who has spent the maximum time period in the United States under section 101(a)(15)(L) and/or (H) of the

Act, unless the alien has resided and been physically present outside the United States, except for brief visits for

business or pleasure, for the immediate prior year. The petitioner shall provide information about the alien's

employment, place of residence, and the dates and purpose of any trips to the United States for the previous

year. A consular or Service officer may not grant L classification under a blanket petition to an alien who has

spent five years in the United States as a professional with specialized knowledge or seven years in the United

(2) States as a manager or executive, unless the alien has met the requirements contained in this paragraph.

(ii) Exceptions. The limitations of paragraph (l)(12)(i) of this section shall not apply to aliens who do not reside

continually in the United States and whose employment in the United States is seasonal, intermittent, or

consists of an aggregate of six months or less per year. In addition, the limitations will not apply to aliens who

reside abroad and regularly commute to the United States to engage in part-time employment. The petitioner

and the alien must provide clear and convincing proof that the alien qualifies for an exception. Clear and

convincing proof shall consist of evidence such as arrival and departure records, copies of tax returns, and

records of employment abroad.

(13) Beneficiary's use of Form I - 797 and Form I - 129S --

(i) Beneficiary of an individual petition. The beneficiary of an individual petition who does not require a

nonimmigrant visa may present a copy of Form I - 797 at a port of entry to facilitate entry into the United States.

The copy of Form I - 797 shall be retained by the beneficiary and presented during the validity of the petition

(provided that the beneficiary is entering or reentering the United States) for entry and reentry to resume the

same employment with the same petitioner (within the validity period of the petition) and to apply for an

extension of stay. A beneficiary who is required to present a visa for admission and whose visa will have expired

before the date of his or her intended return may use an original Form I - 797 to apply for a new or revalidated

visa during the validity period of the petition and to apply for an extension of stay.

(ii) Beneficiary of a blanket petition. Each alien seeking L classification and admission under a blanket petition

shall present a copy of Form I - 797 and a Form I - 129S from the petitioner which identifies the position and

organization from which the employee is transferring, the new organization and position to which the employee

is destined, a description of the employee's actual duties for both the new and former positions, and the

positions, dates, and locations of previous L stays in the United States. A current copy of Form I - 797 and Form

I - 129S should be retained by the beneficiary and used for leaving and reentering the United States to resume

employment with a qualifying organization during his/her authorized period of stay, for applying for a new or

revalidated visa, and for applying for readmission at a port of entry. The alien may be readmitted even though

reassigned to a different organization named on the Form I - 797 than the one shown on Form I - 129S if the job

duties are virtually the same.

(14) Extension of visa petition validity--

(i) Individual petition. The petitioner shall file a petition extension on Form I-129 to extend an individual petition

under section 101(a)(15)(L) of the Act. Except in those petitions involving new offices, supporting

documentation is not required, unless requested by the director. A petition extension may be filed only if the

validity of the original petition has not expired.

(ii) New offices. A visa petition under section 101(a)(15)(L) which involved the opening of a new office may be

extended by filing a new Form I - 129, accompanied by the following:

(A) Evidence that the United States and foreign entities are still qualifying organizations as defined in paragraph

(l)(1)(ii)(G) of this section;

(B) Evidence that the United States entity has been doing business as defined in paragraph (l)(1)(ii)(H) of this

section for the previous year;

will perform under the extended petition;

(D) A statement describing the staffing of the new operation, including the number of employees and types of

positions held accompanied by evidence of wages paid to employees when the beneficiary will be employed in a

managerial or executive capacity; and

(E) Evidence of the financial status of the United States operation.

(iii) Blanket petitions --