Mr. Wildes

Hospitality Law

L-1 Visa: Transferring Employees From Overseas for Work in the U.S.

By Michael Wildes, Partner , Wildes & Weinberg

Few industries can boast the worldliness of the hospitality industry. As hotels and lodges seek out tourist hubs and travel spots worldwide, the industry has largely trended toward international expansion. Today Americans can travel to any corner of the globe and find a hotel brand that they know and trust. Just as the industry’s patrons are traveling now more than ever, employees, too, are increasingly being transferred from one overseas location to another. When certain requirements are met, employees from the international office of one company can be transferred to a domestic office with relative ease courtesy of the L-1 intra-company transfer visa.

In particular, we are aware of one major, international hotel chain that has a smart, established practice of bringing interested employees to the United States as J-1 visa trainees. The trainees spend a year becoming familiar with the company’s signature practices, then return to an office abroad in a management capacity to implement the skills they have learned. If the company wishes for them to return to the United States, the employees are well positioned to become L-1 visa intracompany transfers, for reasons that will be outlined below. Such programs attract motivated job candidates, offer upwardly-mobile career paths and build a well-trained job corps for the hotel. For other hotels large enough to do so, taking advantage of the L-1 visa program is a winning move. Who is eligible?

In order for an intracompany employee transfer to qualify for an L-1 visa, a qualifying relationship must first be established between the U.S. and the overseas entity. According to the United States Citizenship and Immigration Service (USCIS), the overseas office must be a parent company, branch, affiliate, subsidiary or joint venture of the American entity. Given the nature of the hospitality industry, satisfying this requirement should pose little difficulty, with the exception of boutique hotels and some lodges.

Only certain employees are eligible for L-1 visa classification. They must be either managers, executives or “specialized knowledge” employees. Managers and executives apply for L-1A visas and professionals possessing “specialized knowledge” apply for L-1B visas. USCIS considers specialized knowledge to consist of proprietary skills, knowledge and/or experience of a company’s procedures, systems or services. Specialized knowledge might include a hotel’s unique guest offerings, or experience working with a proprietary software system.

In order to transfer a foreign employee to a U.S. office, the employee must have worked in the capacity of executive, manager, or employee with specialized knowledge for the foreign entity at least one year during the three years preceding the filing. Unlike the H-1B specialty worker visa, there is no annual limit—or “cap”—on the number of L-1 visas granted per fiscal year.

L-1 Validity Periods

The L-1 visa is a non-immigrant visa, meaning that it is temporary in nature and for those who do not intend to reside permanently in the United States. Generally L-1 visa status is issued for an initial period of three years, although L-1A visas are extendable in two year increments for a maximum of seven years and the L-1B visa may be extended for a total of five years.

The L-1 visa may legally be used as a stepping stone to a green card under the doctrine of dual intent, and spouses and unmarried children under the age of 21 are allowed to join the principal worker under L-2 status. L-2 dependant spouses are permitted to work in the U.S.

In past articles, we have written about the J-1 and H-3 trainee visa categories. While these visa classifications present many advantages for the hospitality industry, they also have a fixed end-date. For employers who are frustrated with training talented associates only to have them be required to return home at the end of their visa validity period, the L-1 visa may provide an excellent solution.

L-1 Blanket Petitions

In certain instances, it may be advantageous for a company to file for an L-1 blanket petition. An L-1 blanket petition acts as a general pre-approval for large companies that frequently transfer employees to the U.S. Rather than submitting new petitions every time an employee is moved from overseas to an American office, a company with an approved blanket petition has already demonstrated its eligibility for the classification. Its transferees won’t have to wait for individual USCIS approval before they arrive at a U.S. consulate to receive their visa.

To qualify, the U.S. company must:

• Be engaged in commercial trade or services;
• Have a U.S. office that has been doing business for one year or more;
• Have three or more branches, subsidiaries or affiliates; AND
• Fulfill one or more of the following:
  a) Obtained at least 10 L-1 visas for its employees within the last 12 months;
  b) Have U.S. subsidiaries or affiliates with combined annual sales of US$25 million or more; OR
  c) Have a United States workforce of at least 1,000 employees

Challenges Facing L-1 Visa Classification

Over the last several years, it has become increasingly difficult to get L-1 petitions approved. With the hopes that the U.S. will emerge stronger and more financially secure at the end of the current recession, the government seems to be adopting a very limited stance on admitting foreign-born workers. This means that individuals being transferred to an American office must posses unique or proprietary knowledge not otherwise found in American employees. A visa classification that was once vulnerable to fraud, the L-1 visa is being closely scrutinized. As such, unless the employee is truly qualified and clearly fulfills the regulatory criteria, the petition may not be favorably adjudicated.

Is the L-1 Visa Right For Your Hotel?

The L-1 visa classification provides an excellent option for hotels with an international presence that regularly hire foreign-born employees. When the H-1B specialty worker visa reaches its 65,000 visa cap, employment-based visa options can sometimes be scarce. If a hotel qualifies for L-1 visa transfers, they need not worry about coordinating start dates to accommodate the “cap” as they would for H-1B workers. Hotels that qualify for L-1 blanket petitions have even fewer hoops to jump through, making overseas employee transfers as easy as they ever will be.

While the L-1 visa is not always as adaptable as the more versatile H-1B visa, it is an invaluable resource for companies that qualify for its use. If your hotel is large enough to utilize this excellent classification, we highly recommend doing so. International employees bring with them a wealth of experience and irreplaceable global perspective. Transfer them to the U.S. and you just might find that they bring you the competitive edge you—and your guests—were looking for.

Michael Wildes is the Mayor of Englewood, NJ, an immigration lawyer and a former federal prosecutor. As partner of preeminent immigration law firm Wildes & Weinberg, Wildes has become internationally renowned for having represented the United States Government in immigration proceedings, for the successful representation of several defectors who have provided hard-to-obtain national security information to the United States and, most recently, for obtaining an injunction to prevent Libyan leader Muammar Gaddafi from residing in New Jersey during the 2009 UN Summit. Mr. Wildes can be contacted at 212-753-3468 or mwildes@wildesweinberg.com Extended Bio...

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