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Changes in L-1A Visa Processing -- The Semantics of Titles

Changes in L-1A Visa Processing -- The Semantics of Titles

By Murali Bashyam of Bashyam & Spiro Law Firm
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May 24th, 2011

For well over a decade, managers and executives of foreign companies could enter the U.S. to work for or establish a parent, subsidiary or affiliate of that company in the United States.  In addition, it was irrelevant to visa processing whether the manager or executive also owned a part of the U.S. or foreign company.  That has since changed…

Owner vs. Employee

The U.S. visa category commonly used by managers and executives of multi-national companies is the L-1A intra-company transfer visa. The U.S. Citizenship and Immigration Service (USCIS) has recently changed its long-standing policy on the L-1A visa.  The new policy is that an owner of a company cannot also be an 'employee,' and therefore they are not eligible to receive an L-1A visa.  Simply, that in the L-1A visa category an employer-employee relationship must exist, and one test of that relationship is the ability of the employer to fire the employee.  The USCIS position is that an owner of a company cannot fire him or herself, and therefore no employer-employee relationship exists.

Real World Examples

If a senior level Vice President (VP) of a large company in the United Kingdom wants to come and work as a VP of the company's US parent, subsidiary or affiliate, they no longer can use the L-1A visa if they own any percentage of either company.  Or, if an entrepreneur starts and grows a successful company in another country, they can no longer use the L-1A visa to come to the U.S. to establish a parent or subsidiary of that company if the entrepreneur owns any percentage of the foreign company.

Why is the USCIS Arbitrarily Changing this Policy Now?

Your guess is as good as ours!

Common sense would dictate that business immigration should be made easier during an economic downturn.  People should be encouraged to come to the U.S. and start businesses.  Creation of companies results in the creation of jobs.  Instead, the opposite is happening.  The USCIS is going against long-standing policy in many business immigration categories, and is making it more difficult for foreign business professionals and entrepreneurs to contribute to our country and our economy.

Regardless of whether it's the best or worst of times, the U.S. should always have a welcoming immigration policy for foreign business professionals and entrepreneurs.  We have nothing to lose, but everything to gain from their contributions to our society and economy.

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