How does a company qualify for an L-1 "New Office" Visa
The employer abroad and in the U.S. must meet certain conditions in order to be eligible to apply for a new office L-1A petition. As a general matter, these conditions are as follows:
The U.S. company must be a “new office” which has been doing business for less than one year – “doing business” is defined as providing regular, systematic, and continuous goods or services.
The U.S. company is a parent, subsidiary, affiliate or branch of the foreign company:
Parent – A legal entity which owns a “subsidiary” (as defined below).
Subsidiary – The U.S. entity is a qualifying subsidiary if the foreign company (i) owns half or more of the U.S. company and controls the company, (ii) owns 50 percent of the U.S. company in a 50-50 joint venture and has equal control of the U.S. company, or (iii) owns less than 50 percent of the company but controls the company (this would happen when the foreign company owns a plurality of the shares).
Affiliate – When the foreign company and U.S. company are both subsidiaries of the same parent entities, they are “affiliates.” To qualify as “affiliates,” the individuals owning the U.S. and foreign company must have approximately the same share of ownership and control of each entity.
Branch – The U.S. company is a division of the foreign company without serving as a separate operating entity.
Sufficient physical premises for the new company and its business purposes have been secured (this is usually proven by presenting a lease or title to the new office space).
Support Executive or Managerial Position Within One Year
The petitioner must establish that the intended U.S. operation will support an executive or managerial position for the foreign employee within one year of the petition. Broadly speaking, to qualifty as executive or managerial, an employee must be primarily focus on company strategy and direction and supervise professionals (i.e. university graduates) or managers (i.e. persons with subordinates). To successfully establish this prong, the applicant may provide a detailed business plan, which must include, among other things:
The proposed nature of the office, describing the scope of the business purpose, the company’s organizational structure, and its financial goals over the course of the next five years;
Proposed staff levels by the end of the first year;
The size of the U.S. investment and the financial ability of the foreign entity to pay the beneficiary; and
The organizational structure of the foreign entity.
Continued International Operations
The foreign company continues its operations throughout the anticipated stay of the employee in the United States as an L-1A transferee: The foreign entity must continue its operations throughout the entire period of the foreign employee’s stay in the United States in L-1 status.