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Part 3 – Intra-Company Transfer L-1A and L-1B Visas Editorial:

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Because the L-1A and L-1B visas are designed for management and specialized positions, it is important to understand the definitions set forth by the law. In this presentation, we will look at the definition of a manager.

Overview of a Management Position: “To qualify as a manager under the current definition, the non-immigrant may also be involved in the high-level management of an essential function as well as supervising the work of other supervisory, managerial, or professional employees.”

Another definition of managerial capacity to consider is: –

“An assignment [the position on offer] in which the employee primarily directs the organization; supervises the work of other supervisory, professional, or managerial employees, or a department or subdivision of the organization; has the authority to take or recommend such personnel actions as hiring, firing, and promotion; exercises discretionary authority over the day-to-day operation; and does not include first-line supervision unless the supervised personnel are professionals.”

US Immigration will look at the organizational set-up of the company to determine where the employee candidate falls and whether or not he or she is, indeed, in a position of leadership. For this type of application, it is not enough to have the title of ‘manager,’ rather we will need to provide that your specific job duties are management-related.  In other words, it is not sufficient to hold the title of manager, but the primary role of the transferee must be to manage others as opposed to doing the bulk of the day-to-day work themselves. Indeed, the manager’s staff must carry out the essential functions of the business.

Part 3 – Intra-Company Transfer L-1A and L-1B Visas Commentary:

Let’s consider the following case study – a transferring plastic surgeon from the UK is coming to the US to open up a clinic where he would be the only medically qualified practitioner. In addition, the business plan shows how the surgeon would hire a team of administrative staff to book all of the consultations and procedures, and handle all of the day-to-day financial paperwork associated with the business.

Under the L-1 visa manager definition, this application would not succeed because the manager must not be the person carrying out the core function of this business, but instead lead others to carry out this core work. In this case, it’s a medical practice and thus since the applicant is the only qualified practitioner, then he would be carrying out all of the medical procedures – in essence, the core functions of the business.

However, if the surgeon’s plan was to recruit other surgeons within the first year of opening the clinic, he would therefore hold a leadership role over the medical team he had established and this business model would be a better fit. There is case law where a sole employee of the US branch could qualify for an L1 visa. For example, and again using the above case study, if all of the surgeon’s staff was contracted in as needed – as free lance workers who came in as and when needed – then this business model would also meet the management requirements. Matter of X, 16 Immig. Rptr. B2-84 (AAO Feb. 29, 1996) and Matter of X, 10 Immig. Rptr. B2-13 (AA0 Apr.13.1992)

In the next presentation, we’ll focus on how US Immigration defines the ‘executive’ role within a company.

Immigration Law Offices of Chris M. Ingram

Immigration Law Offices of Chris M. Ingram

US Immigration Law Offices of Chris M. Ingram
Chris M. Ingram LL.M., ESQ – Immigration Attorney
Admitted in New York.
Practice Specializing in US Immigration Law
401 Wilshire Boulevard, 12th Floor,
[Cross Streets 4th and Wilshire]
Santa Monica,
California 90401
Tel: 442 244 4350

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