By: Betty Chu
Irene had been working as a Senior Project Manager for an advertising company in the Philippines for the past year. The parent company in the Philippines wants to set up a branch office in the United States and now seeks her employment in the United States. Upon further inquiry, though, it appears that Irene had been working as a consultant and her services were not "exclusive" to the parent company. She was essentially an independent contractor who was free to work for other companies as well.
The Service has taken the position that an actual employment relationship must have existed. An independent contractor who performed services for a foreign company does not satisfy the one-year employment abroad requirement even if the contractor's employment was completely controlled by the company and the contractor did not work for any other entity. In Irene's case, she did not satisfy the one-year employment abroad requirement because the foreign company must have employed the L-1 beneficiary directly, as an employee of the company.
L-1 status is available only to an applicant who has been employed: (1) for at least one continuous year during the last three years prior to entering the United States by the foreign corporation, branch office or other legal entity, (2) in a managerial or executive capacity (L-1A) or a capacity that involves specialized knowledge (L-1B), and (3) now seeks admission to the United States to be employed in either capacity by a qualifying organization that is a parent, branch, affiliate, or subsidiary of the foreign employer.
Assuming that Irene was an actual employee and not an independent contractor, the next consideration would be whether she is currently working in an executive, managerial, or specialized knowledge capacity with the company abroad. L-1 employees must qualify by employment abroad and employment in the United States in one of three capacities defined:
The L-1A employee primarily manages the organization, or a department, or key function of the company. For example, if Irene is qualifying as a manager of personnel, she must supervise and control the work of other supervisory, managerial, or professional personnel and have the authority to make effective recommendations regarding key personnel decisions.
The L-1A employee primarily directs management of the organization or controls a major function of the organization, establishes its goals and policies, exercises wide latitude in discretionary decision-making, and works under only the general direction of higher-level executives, members of the board of directors, or stockholders.
The L-1B employee must have knowledge that is special to the organization and not general knowledge commonly held throughout the industry. The employee must possess advanced level of knowledge or expertise regarding the organization's product, service, research, equipment, techniques, management, or other interest and its application in international markets.
If the L-1 beneficiary qualifies in any one of the three definitions above, the next consideration is whether there is a qualifying relationship between the foreign company and the U.S. branch, affiliate, or subsidiary of the foreign employer. The foreign and U.S. employers must be branches of the same entity or be related as parent/subsidiary or as affiliates.
Given the complexities of L-1 petitions, it is highly recommended that you seek the assistance of an attorney before proceeding with an L-1 case.
Betty Chu, Esq. is an Associate at Wilner & O'Reilly, a firm specializing in Immigration Law. She is a member of the Los Angeles and Orange County Bar Associations and has been admitted to practice law in the Central and Southern Districts of California. Ms. Chu received her Juris Doctor from Loyola Law School in Los Angeles and her Bachelor of Arts in Communications from UCLA. She previously served on the American Bar Association's Negotiation Competitions Committee. She is fluent in Mandarin Chinese.