Qualifying Organization for an L1 Visa Petition
There is no restriction on the types of business that can sponsor an L1 visa – corporations (S, C, LLC etc.), partnerships, government-owned entities, non-profit, religious, or charitable organizations are all eligible. The sponsoring employer need not be U.S. owned or incorporated. There are several business entities in the United States that can offer employment to the alien – a parent company, a branch, a subsidiary, or an affiliate of the foreign company. Only if these entities are able to offer full proof that they meet the definition of a “qualifying organization” will the alien be granted temporary, nonimmigrant work status in the U.S. by the United States Citizenship and Immigration Service (USCIS).
• Branch: An operating division or office of the same organization housed in a different location. In other words, branches are different operating locations of the same company. For example, a multi-national corporation that has branch offices in multiple countries.
A U.S. organization with a branch office abroad qualifies, as does a foreign organization with a U.S. branch. However, the branch must be more than simply an agent or representative.
• Subsidiary: Means a firm, corporation, or other legal entities of which o a parent owns, directly or indirectly, more than half of the entity and controls the entity; or owns, directly or indirectly, half of the entity and control the entity; o or owns, directly or indirectly, 50 percent of a 50-50 joint venture and has equal control and veto power over the entity; o or owns, directly or indirectly, less than half of the entity, but in fact controls the entity.
A firm, corporation, or other legal entity which has subsidiaries.
Few examples: 1. A foreign parent must own at least 50% of a U.S. subsidiary, and have veto powers over the subsidiary’s actions; 2. A U.S. parent must own must own at least 50% of the foreign subsidiary, and have veto powers over the subsidiary’s actions; 3. Affiliate U.S. and foreign companies must each be at least 50% owned by the same ultimate parent;
• Affiliate: It means:
1. One of two subsidiaries both of which are owned and controlled by the same parent or individual, or …
2. One of two legal entities owned and controlled by the same group of individuals, each individual owning and controlling approximately the same share or proportion of each entity, or …
3. In case of a partnership that is organized in the U.S. to provide accounting services along with managerial and/or consulting services and that markets its accounting services under an internationally recognized name under an agreement with a worldwide coordinating organization that is owned and controlled by the member accounting firms, a partnership (or similar organization) that is organized outside the U.S. to provide accounting services shall be considered to be an affiliate of the U.S. partnership if it markets its accounting services under the same internationally recognized name under the agreement with the worldwide coordinating organization of which the U.S. partnership is also a member.
The last rule is only intended to apply to a limited number of very large and prominent firms. As there is no direct relationship between the two companies, it may be more difficult to demonstrate affiliate business relationships compared to other types.
The worker does not need to be directly employed by the sponsor. It is OK even if he/she is paid through a personnel service company or an agency, or even as an independent consultant, as long as the sponsor had management and control over the worker during the qualifying year.
If there is only a contractual relationship such as licensing or franchising between the U.S. company and a foreign company, that is usually insufficient to establish the qualifying relationship to qualify for the L-1 visa.
Additional non-qualifying relationships include arrangements such as less than 50-50 joint ventures and charter membership arrangements.
If either or both of the qualifying entities go through the corporate change such as merger or acquisition or spin-off, the USCIS must be informed of the same who will determine whether the qualifying relationship still exists between two entities.
USCIS should review standard documents from the merger: the letter of intent, minutes from shareholder’s meeting, the Hart-Scott-Rodino antitrust filings, as well as the ultimate contract. However, in case of private companies, there may be concerns regarding proprietary information and finances.
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