This post will serve to highlight a few key differences between the two types of L-1 visas from a functional and strategic planning point of view.
Broadly speaking, the L-1 is a nonimmigrant visa option for employees of companies located abroad. This “intracompany transferee” option is available to individuals who have been employed by a “qualifying foreign company” for at least one year within the previous three years prior to being admitted to the U.S. A “qualifying relationship” between a foreign employer and petitioning U.S. employer means one is a branch, subsidiary, or affiliate of the other.
The L-1A visa is intended for individuals who have been employed in an “Executive” or “Managerial” role for their one year of qualifying employment. Executives establish policies and goals, manage the organization or a major function or component, have discretionary decision-making ability, and only receive general supervision or direction from higher level executives. Managers are generally regarded as employees who supervise and control the work and labor of other employees and/or manage a key component or division of an organization.
The L-1B visa is for “specialized knowledge employees”. Specialized knowledge in the L-1B visa context refers to “special knowledge” of the company’s “product, service, research, equipment, techniques, management or other interests and its application in international markets”, or has an “advanced level of knowledge or expertise” in the organization’s processes and procedures.
Aside from the specific nature of qualifying employment, there are two key differences to keep in mind when evaluating whether an L-1A or L-1B is most appropriate for your situation.
The first is the maximum period of validity for each option. The L-1A is initially granted for a period of 3 years (1 year for a ‘new-office L-1’). Renewals thereafter can be granted in 2-year increments for a total period of 7 years. The L-1B on the other hand, while also initially granted for a 3-year period, can only be extended for up to 5 years.
The second key difference is an especially important consideration for those looking to live and work in the U.S. on a more permanent basis. The L-1A provides a clearer path to a green card through the EB-1C category for “multinational executives and managers”. Due to the fact that the L-1 visa, like the H-1B visa, is a “dual intent” visa status, an individual can enter the country to work on an L-1A and have the possibility to later apply for an EB-1 as a multinational executive and managerial level professional.
The key difference between the L-1A and L-1B, is that the EB-1C option is typically only available to individuals who qualified for the L-1A status, not the L-1B. One major advantage to the EB-1C category is that unlike many other employment-based green card categories, the approval of a PERM Labor Certification application with the Department of Labor is not required.
Transitioning from the L-1B to an employment-based green card is certainly possible, but usually only through the second or third preference categories, both of which require an approved PERM.
L-1A vs L-1B visa: How to know which option to use?
At first glance, it may appear obvious whether you are an executive, manager, or specialized knowledge employee. Furthermore, in the “real world” many jobs require that an individual utilize their specialized knowledge while performing both executive and managerial tasks. This is certainly the case in small companies and start-ups. And while some cases are more straightforward than others, choosing the wrong category makes your petition highly susceptible to a request for additional evidence (“RFE”).
An experienced immigration attorney knows that the spaces between these three classifications are full of gray areas. For example, the title of “Vice President” carries a wide variety of connotations depending on the specific industry, company structure, and type of work. Certain businesses for example may have 15 employees, 10 of which are “Vice Presidents.”
A helpful rule of thumb is if you are a “C-level” professional who reports only to the CEO and/or Board of Directors, chances are you should look at the “executive” L-1. Start by looking at a company organization chart.
Another way of looking at it – Do you supervise and manage the work of others? Or are you responsible for developing broad, high-level policy that determines the direction of the company as a whole? Even if your title sounds “executive” and you are positioned relatively high in the company hierarchy, adjudicators will most likely consider the position a “managerial” L-1A.
What if my duties change after entering the US on an L-1B?
Let’s say you have been employed in a specialized knowledge capacity for 5 years at a foreign company but never occupied a role that can be considered managerial or executive. You successfully file an L-1B petition to work for your employer’s US affiliate. You are doing a great job, so much so that after a year or so your employer wants to promote you to a role that will manage a team of other professionals so that you can train them using the “specialized” institutional knowledge that you have gained through your 6-year history with the company.
Fortunately, individuals who enter the US in the L-1B status can transition to the L-1A (link to part 2 of the series) if their role similarly changes to that of an executive or manager.