Employees: Crucial Requirement for the L-1A Visa

The United States is an attractive and lucrative market for foreign companies looking to expand their operations and global reach.  An executive or manager is thus frequently transferred to the U.S. in order to establish the foreign company’s footprint in our market, which is usually accomplished through the organization of a domestic entity.  Enter the L-1A visa, which allows for the transfer of executives and managers.

Of course, you would not be an executive or manager if you did not direct or manage anyone, so among a multitude of requirements for the L-1A visa, I find the issue of hiring employees to be a source of confusion.

Do I need employees to qualify for the L-1A visa?

This is a common question I receive during our consultations, and can be phrased in many ways:

• Is there a required number of employees that the U.S. company must have in order to qualify and initiate the transfer of the foreign executive or manager?
• How many individuals does the executive or manager need to direct?
• Do independent contractors count?
• Can I use the employees of the affiliated entities or foreign parent company as support staff?

What do the regulations say?

As always, guidance is found in the relevant regulations.  The Code of Federal Regulations (“CFR”), Immigration and Nationality Act (“INA”), and the Foreign Affairs Manual (“FAM”), among other sources, do not specify a set number of employees needed in order to qualify for the L-1A visa.  In other words, the answer to the employee question is not found in the laws and regulations, but rather must be crafted from an understanding of what it means to be an executive or manager.

For example, the FAM provides insight into proving managerial or executive capacity:

“(c) An executive or managerial capacity requires a high level of authority and a broad range of job responsibilities.  Managers and executives plan, organize, direct, and control an organization’s major functions and work through other employees to achieve the organization’s goals.  In determining whether an alien supervises others, independent contractors as well as company employees can be considered…” (Emphasis supplied.)

“(e) If a small or medium-sized business supports a position wherein the duties are primarily executive or managerial, it can qualify under the L category.  However, neither the title of a position nor ownership of the business is, by itself, an indicator of managerial or executive capacity.  The sole employee of a company may qualify as an executive or manager, for L visa purposes, provided his or her primary function is to plan, organize, direct, and control an organization’s major functions through other people.” (Emphasis supplied.)

9 FAM 402.12-14(B).

Simply stated, the FAM requires that the executive or manager have sufficient layers of professionals under them in order to effectively perform his/her executive or managerial duties and responsibilities.  Depending on the nature of your business, these professionals may be employees, independent contractors, support staff from affiliated entities, subcontractors, or others.

In addition, we can infer from the FAM and other regulations that USCIS and the consular officers do not want to see an executive or manager performing the day-to-day functions of the company.  Accordingly, executives and managers should primarily manage and direct the U.S. entity instead of conducting administrative or ministerial tasks.  In fact, as per the FAM, it is even possible to qualify with only one employee, so long as others are carrying out the organization’s purpose at the behest of the executive or manager.

By way of example, our firm successfully represented a management company with only one executive and employee by persuading the immigration officer that despite its small staff, the organization used multiple layers of independent contractors, subcontractors, and support staff from the foreign company.  We enlisted our team of advisors and business attorney to draft the relevant documentation and contracts in order to prove the individual’s executive capacity and leadership in the organization.

Conclusion

Ultimately, your answer to the employee question will depend on the facts unique to your organization. Understanding your business model and objectives is crucial to the drafting of a persuasive petition.  It is necessary to analyze your company’s strategies for expansion and properly document how the novel use of employees will lead to the company’s success in the United States.  The regulations and statutes will provide guidance, and properly synthesizing the law with your facts will provide you with the answer to the employee question.