The pitfalls and outlook of the intra company transfer executive or manager

By Dev Banad Viswanath, Esq.

          The L1A classification category is a non-immigrant category which allows a U.S. employer to transfer an executive or manager from one of its affiliated foreign offices to one of its offices in the United States. This classification also enables a foreign company that does not yet have an affiliated U.S. office to send an executive or manager to the United States with the purpose of establishing one. It can be a very valuable tool for the multinational corporations with roots or interests in the United States. This classification also allows for dual intent, which means that the employee L1A could be company to the US on this temporary visa and still maintain the intent to remain permanently in the US. And for most people who qualify as an L1A executive, they are likely to also qualify for EB-1 category in Permanent Residence.

          Executives are usually considered to be employees who make vast and wide ranging decisions with little to no supervision or restriction. Executive Officers like CEOs, COOs, CTOs, and CFOs are an example of executives that may qualify for an L1A executive position, however, there are many others as well.  When considering this visa modality, it is imperative to understand the role of the employee both abroad and in the proposed US position and be able to establish the executive duties and responsibilities.

          Managers are a bit different.  A manager can be a manager of actual people, or can manage a function of the company.  The ability of the employee to supervise and control the work of professional employees and to manage the organization, or a department, subdivision, function, or component of the organization.  It could be an employee’s ability to manage an essential function of the organization at a high level, without direct supervision of other workers. For example, a Person may be a Team lead for a development team and be considered a manager.  Or a Person can be the head of Human Resources or Accounting.  Sometimes there is considerable overlap or grey area as to who is an executive and who is a manager.

President Trump has decreed by Executive Order that in light of the financial hardship related to the Covid-19 Pandemic,  that the United States would take the protective measure of suspending, among other categories, all new L1 visa applicants.  This does NOT apply to people in the United States already who apply for a change of status to L1A. This also does NOT apply to people who are either in the United States or abroad, seeking a visa, if the L1A is based on a renewal. President Trump declared that the suspension of these visa types through December 2020 would somehow protect the American worker in some way, but by its very definition, an L1A candidate is already employed and continuing their employment, but with a US affiliate. But there is no direct or indirect competition that an L1A intracompany transferee poses to the local American worker. And if there were, he would have suspended the visa category outright and across the board without allowing for renewals and people who are in the US already.  The move seems to have more of a nationalist and populist overtone, whereby the administration looks to fill the air of polarization in an election year. These restrictions do nothing to help American Companies or Workers unless he is trying to rid “American” Companies from competition from rivals, who may also be “American” but not this President’s type.

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