Jump to:

L Visa

Licensing of Foreign Persons Employed by a U.S. Person

When is a foreign person considered an employee?
A foreign person is considered an employee when the foreign person is a full time regular employee, directly paid, insured, hired/fired and/or promoted exclusively by the U.S. person. The employee, however, need not LIVE in the U.S. to be employed by the U.S. person. The U.S. person is liable to ensure all foreign person employees are compliant with U.S. export laws regardless of residence.

If residing overseas, is the foreign person employee considered a broker?
If truly employed by the U.S. person, the foreign person is NOT considered a broker when performing the U.S. person’s business (must be within the scope of the employment authorization) since he/she is a company employee.

Should current authorizations be replaced or amended to be consistent with current guidance?
Currently approved authorizations are still valid. As expiration dates are reached, industry will be expected to submit the appropriate authorization as delineated in the current guidance.

Can multiple employees be covered under one authorization?
Yes. Multiple foreign person employees can be covered under one authorization so long as they are all of the same nationality working on the same program/commodity, i.e., all French nationals working on the same radar program.

How is an employee providing marketing services overseas identified in a license application?
If the U.S. person desires for the foreign person employee to market their products to other countries and the product is within the scope of the DSP-5, the U.S. person should obtain a license to market a particular technology to a particular country identifying the foreign person employee as a foreign consignee. Once the marketing license is approved the foreign employee may perform his/her job duties. The case number of the employment DSP-5 should be identified in the marketing license application.

What if the foreign person’s place of birth is different from the country he/she now resides in and holds citizenship from?
This would bring into question the issue of dual nationality and whether the individual had ties to his country of birth which would indicate a degree of loyalty and allegiance to that country. The license would be considered on the basis that it could be an export to both countries. Normally, this does not present a problem unless the country of birth is proscribed under 22 CFR 126.1 in which case we have to secure additional information to confirm lack of significant ties to the country of birth.

Wha value should be entered on the license application?
DDTC suggests identifying the foreign person employee’s annual salary and/or value of the technical data/defense services transferred/received.

How should the foreign person employee of a U.S. person be identified in the TAA or MLA?
The agreement holder must amend the agreement to specifically identify the foreign person employees of all U.S. signatories. The statement should be made in 22 CFR 124.7(4) with other statements regarding transfer territory. If the foreign person employees are not already identified, this statement should be included in the next amendment submitted to DDTC for approval. 

Who should sign the DSP-83 for the transfer of U.S. classified information?
The U.S. person and the foreign person employee must execute the DSP-83 when the transfer of U.S. classified information is required. DDTC may require the foreign government to execute the DSP-83 on a case-by-case basis. 

For more information visit these links: http://www.pmddtc.state.gov/faqs/license_foreignpersons.html#1

http://www.uscis.gov/working-united-states/temporary-workers/frequently-asked-questions-about-part-6-form-i-129-petition-nonimmigrant-worker&nbbsp;
http://www.bis.doc.gov/

DOL Issues Clarification on L Visa Fees and Reciprocity Fees

  • State department's cable clarifies how reciprocity fees are affected when consular officers collect anti-fraud fees and border security fees.
  • Please check attached file.

Case type: L-1B Specialized Knowledge Worker

Category: L-1B Visa, L Visa
Status: Petition Approved

Over the last few years, approvals of L-1B cases have become particularly difficult.  An L-1B (Intra-Company Transfer Visa) petitioner retained us after receiving a Request for Evidence from USCIS requiring additional proof that the beneficiary had specialized knowledge and that the job duties required an individual with unique knowledge of the petitioner’s complex technology.  We provided documentation to show that the beneficiary had skills that could not be obtained in the open market.  We were also able to show that, within the petitioner’s employee pool, the beneficiary was unique and had gained specialized knowledge through training and years of hands-on experience with the technology.  

USCIS agreed with our arguments and approved the petition.<

DISCLAIMER: PAST APPROVAL OF A CASE IS NOT A GUARANTEE OR PREDICTION REGARDING THE OUTCOME OF FUTURE CASES. CASE RESULTS DEPEND UPON A VARIETY OF FACTORS UNIQUE TO EACH CASE.

Home Residency Requirement for Second Visa

If I remember correctly, 212(e), the HRR, does not apply till you actually use the visa.

Visa denial based upon immigrant intent, Section 214(b) of Immigration and Nationality Act

 

Substantial transcription:
7th July 2012 at 05:16 PM
9.59 Minutes

What do we do when our visa gets denied under section 214(b) of the Immigration and Nationality Act?   Basically, this means that if the consulate doesn’t believe you are going to come back, they deny the visa, saying that you have an immigrant intent which you have not been able to rebut.   So the idea is whenever somebody goes for a visa stamping, they actually are presumed to have immigrant intent unless they prove otherwise.   Of all the visas A, B, C, D, E, F, G, H all the way to V, some visas are immune to this problem.

What are the visas that are immune?

H-1 as well as H-4, L-1 as well as L-2, and O-1 and O-1 derivative visas are immune by law almost.  H and L are clearly immune by law and O by implication.  With these visas, if you have a green card going, the consulate is not going to deny your visa for that reason.

On the other hand, there are notorious visas that are very susceptible to this problem:

B-1, B-2, F-1 as well as F-2 (which are for students), and J-1 as well as J-2 are susceptible.  A lot of physicians on J-1’s have had a visa denial on 214(b).

TN visa holders strictly not going for visa stamping but can be stopped at the border if their green card has been filed.  So bear in mind that when TN holders apply for a green card, they should be careful about this particular factor.

The biggest problem with 214(b) is it is extremely difficult to fight it.  I have recently taken a case in which an F visa was denied on 214(b), and I think we have a fighting chance because the visa applicant has come to the U.S. many times and she has left within her time permitted.  So she’s been a frequent traveler on a B visa.  Her F visa denial is extremely unjustified, in my opinion.

Let me just very quickly go through the visa alphabets.

A visa (diplomats) will have no problem.  They have no issues of a green card being denied.

B visa will have a problem.

C, D, and E visas will usually not have a problem.

The only thing you have to establish for E-3, especially for Australians (E-3 is kind of equivalent of H-1), is that you do have an intention to come back but not to the same degree.   In other words, if you have a home in Australia, the degree of proof is not very high so it is very easy to meet that degree of proof.

G visa is ok.

H visa is ok.

By the way, H-2B visas can have a major problem with immigrant intent.  These are people who are coming to U.S. for to perform skilled labor.

I, which is international journalists/media representatives, may or may not be ok.

J visa will definitely be a problem.

K -1 and K-3 are no problem because they are fiancés or spouses of U.S. citizens and are obviously meant to go into green card.

L visa is no problem.

M, which is folks who are doing vocational training, can have this problem.

P visa (performers, athletes, etc.) can have a problem but usually won’t.

Q visa (exchange visitors) can have a problem.

R visa usually won’t.

 S, T, and U visas won’t usually have a problem because they are done within the USA and are usually either victims of crime or people who are assisting in criminal investigations.

So what do you do if you get a 214(b) denial?
Normally there isn’t much we can do but, if you have been to USA before or else there is something unique in your case, we can ask the consulate to reconsider and if they are not willing and able, then we can ask the visa office in Washington, D.C. to intervene.  You can also contact your family or employer in the U.S. to contact the local Congressmen to seek their intervention.  This typically is not helpful but you can try.  If anybody from the bar or a lawyer tells you he or she can fix it, be mindful because they may not be able to.  Especially be careful when you talk with lawyers in your own country.  This makes me very nervous because we have had some cases where local lawyers in other countries did some strange stuff.  They had some hook ups with consulates and ultimately got caught.

The biggest problem is with fraud or misrepresentation.  If you make a misrepresentation in attempting to get any immigration benefit, you can be barred from entering USA forever.

Going back to 214(b) denials, you can ask the consulate to reconsider.  Reapply if you have a case that begs for a special consideration, like you’ve been to the U.S. many times.  For example, one of my friends asked me that, if his girlfriend is refused a B visa, is it okay to bring the lady in on a K-1 (fiancé visa)?  My take is do not use the fiancé visa in lieu of B-1 or B-2 visa, because if you do not have the intention to get married, the government can consider it to be fraud.  So make sure you want to get married within 90 days after they enter the U.S.

One more point -- there is a legal fiction created in U.S. immigration law about ties to your home country that says you can overcome 214(b) denial if you have ties to your home country.  That in my mind is a legal fiction.  To demonstrate ties is very difficult.  Of course, if you have family in your home country, that’s a good example of ties but to say you have property, but property can be sold, so I don’t think that’s really ties.  Having business is also not really a tie as a business can be sold.  Hence demonstrating ties to your home country is usually a difficult thing to do.

This issue has come up several times recently.  Feel free to ask me specific questions on the website, in a forum, or on a community conference call.

Can You Do Business in USA on your current Visa?

Can You Do Business In the USA on Your Current Visa?

Hello, everyone.  This is Rajiv S. Khanna for the Law Offices of Rajiv S. Khanna, P.C, immigration.com

You can post comments and questions on immigration.com.  I usually respond within three or four days, sometimes a week.  I’m going to answer one of the questions someone asked us on immigration.com. 

Can I start a business on an H-1 visa?

The bottom line is yes, as long as you are in a situation where, even though you are working for your own company, somebody in the company can file.  It must be a true employer/employee relationship.  How does that work?  What if you have a board of directors or if you have a CEO to whom you report, even though you are a stockholder or maybe even you even have majority of stock in the company, but somebody in the company can file, you’re okay.  USCIS has indicated that is their present stance.  You must have an employer/employee relationship if you want to be able to start your own business on H-1.

In addition to that, remember H-1 is for a specific employer.  So if you want to have a concurrent employment with your own company or you want to change companies and go over full time to your own company, you can do that, but you have to process a H-1, either a concurrent H-1 or a successive H-1.  One of the things you need to remember is, if you own majority stock in the company, or if you have influence over the management of the company, it will be very difficult if not impossible for you to do a Green Card through PERM through your own company.

Where does that leave us?  There’s a whole history behind this H-1.  I won’t go through the history.  USCIS has gone up and down.  “You can do it.”  “You cannot do it.”  There is a whole history behind this.  But the bottom line today is, you can do it, but it definitely requires some in-depth consulting with a lawyer.  Make sure you are not getting into a situation which is going to hurt your stance.

Here is another question I get asked. 

I have an EAD through 485.  Can I now start my business?

Sure.  On the side, you can, as long as you don’t leave your current job.  But, remember, you will then no longer be on H-1.  You will be on EAD if you start working for your own company.

I actually have a whole list of visas.

Can I do business on E-2?

Yes, of course.  E-2 visas, which are treaty investor visas, are meant to do business.  E-1, treaty trader, the same thing.  But only a few countries in the world have a treaty with the United States to do E-1/E-2 visas, so you have to make sure that the country you come from has that.

If I’m here on a tourist visa or a B-1, which is called a business visa, can I do business?

The answer is, you can negotiate contracts, you can shake hands, and you can even set up a company, but, if you actively participate in business, you are violating the terms of B visa.  B-1, which is the business visa, is a misnomer.  You start thinking, I have business visa; maybe I can start a business.  But you can’t do it on B-1.

Can I start a business on F-1 visa?

Of course not.  You are a student.

What if I am on my optional practical training and I have my F-1 EAD? 

Maybe, but only for the time you have the EAD.  Again, that is something to be explored.  Don’t just jump into it.  Make sure you understand the ramifications of what you’re doing.

What about on a G visa?

On G-4, of course, the primary applicant of G-4 is engaged in working for a multinational organization such as the World Bank or the IMF.  They cannot do business, but what about their dependents?  I haven’t looked into it specifically.  I suspect that they can, because they do get an EAD and that EAD is not confined to a specific purpose, but I would have to check on that.  I’m just speaking off the top of my head.  I was primarily answering the H-1 question, but I want to share with you what I know.  So, G-4, probably yes. 

H-4?  Absolutely not. 

H-1?  As long as you can be fired. 

I visa?  No. 

J-2 visa?  Yes, as long as you have an EAD.  

K visa?  K visas are all work authorized, so, yes, you can do business. 

L-1?  No, because you’re working for a company.   

L-2?  Yes, because you get an EAD. 

M Visa?  No.

I went through the whole gamut, just to give you a rough idea; more so, to sensitize you to who can and who cannot do business.

Thank you for listening.

State Dept. Releases Pending Final Rule On L Visas Full Validity

DEPARTMENT OF STATE

22 CFR Part 41

[Public Notice:]          

Visas: Issuance of Full Validity L Visas to Qualified Applicants

AGENCY:     State Department.

ACTION:       Final Rule.

SUMMARY:This rule permits the issuance of L visas with validity periods based on the visa reciprocity schedule; whereas the current rule limits L visas to the petition validity period, which is determined by the Department of Homeland Security.   

DATES:  This rule is effective [insert date of publication in the Federal Register]. 

FOR FURTHER INFORMATION CONTACT:Lauren A. Prosnik, Legislation and Regulations Division, Visa Services, Department of State, 2401 E Street, N.W., Room L-603D, Washington, D.C. 20520-0106, (202) 663-1260.

SUPPLEMENTARY INFORMATION:

Why is the Department promulgating this rule?

Current Department regulations require that L visa duration be limited to the validity period of the petition, which, under Department of Homeland Security (DHS) regulations, cannot exceed three years.  Petitioners may apply to U.S. Citizenship and Immigration Services (USCIS) for extension of petition validity in increments of up to two years, but the total period of stay may not exceed five years for aliens employed in a specialized knowledge capacity or seven years for aliens employed in a managerial or executive capacity.  The Department is changing this regulation to delink visa and petition validity periods, as currently required by 22 CFR 41.54(c), “Validity of visa”.  As a result, L visa validity will be governed by 22 CFR 41.112, which provides that, except as provided in paragraphs (c) and (d) of that section, a nonimmigrant visa shall have the validity prescribed in schedules provided to consular officers by the Department, which reflect the reciprocal treatment the applicant’s country accords U.S. nationals, U.S. permanent residents or aliens granted refugee status in the United States.  The change would benefit beneficiaries of petitions for L status who are nationals of countries for which the reciprocity schedule prescribes visa validity for a longer period of time than the initial validity indicated in the petition approved by DHS and who have extended their L stay while in the United States.  Subject to 22 CFR 41.112(c), such individuals generally would not need to again apply for an L visa at a U.S. Embassy or Consulate overseas if they were to travel outside the United States during the period indicated in the applicable reciprocity schedule, as is currently required when petition validity has been extended.  Under 8 CFR 214.2(l)(11), an alien may apply for admission in L status only while the individual or blanket petition is valid.

REGULATORY FINDINGS:

Administrative Procedure Act

This regulation involves a foreign affairs function of the United States and, therefore, in accordance with 5 U.S.C. § 553(a)(1), is not subject to the rule making procedures set forth at 5 U.S.C. 553.

Regulatory Flexibility Act/Executive Order 13272: Small Business.

Because this final rule is exempt from notice and comment rulemaking under 5 U.S.C. § 553, it is exempt from the regulatory flexibility analysis requirements set forth at sections 603 and 604 of the Regulatory Flexibility Act (5 U.S.C. §§ 603 and 604).  Nonetheless, consistent with section 605(b) of the Regulatory Flexibility Act (5 U.S.C. § 605(b)), the Department certifies that this rule will not have a significant economic impact on a substantial number of small entities.  This regulates individual aliens applying for visas under INA § 101(A)(15)(L) and dooes not affect any small entities, as defined in 5 U.S.C. § 601(6). 

Unfunded Mandates Reform Act of 1995

Section 202 of the Unfunded Mandates Reform Act of 1995, Pub. L. 104-4, 109 Stat. 48, 2 U.S.C. § 1532, generally requires agencies to prepare a statement before proposing any rule that may result in an annual expenditure of $100 million or more by State, local, or tribal governments, or by the private sector.  This rule will not result in any such expenditure, nor will it significantly or uniquely affect small governments. 

 Small Business Regulatory Enforcement Fairness Act of 1996

This rule is not a major rule as defined by 5 U.S.C. § 804, for purposes of congressional review of agency rulemaking under the Small Business Regulatory Enforcement Fairness Act of 1996, Pub. L. 104-121.  This rule will not result in an annual effect on the economy of $100 million or more; a major increase in costs or prices; or adverse effects on competition, employment, investment, productivity, innovation, or the ability of United States-based companies to compete with foreign-based companies in domestic and import markets.

Executive Order 12866

The Department of State has reviewed this proposed rule to ensure its consistency with the regulatory philosophy and principles set forth in Executive Order 12866 and has determined that the benefits of this final regulation justify its costs.  The Department does not consider this final rule to be an economically significant action within the scope of section 3(f)(1) of the Executive Order since it is not likely to have an annual effect on the economy of $100 million or more or to adversely affect in a material way the economy, a sector of the economy, competition, jobs, the environment, public health or safety, or State, local or tribal governments or communities.

Executive Orders 12372 and 13132: Federalism

This regulation will not have substantial direct effects on the States, on the relationship between the national government and the States, or the distribution of power and responsibilities among the various levels of government.  Nor will the rule have federalism implications warranting the application of Executive Orders No. 12372 and No. 13132.

Executive Order 12988: Civil Justice Reform

      The Department has reviewed the regulations in light of sections 3(a) and 3(b)(2) of Executive Order No. 12988 to eliminate ambiguity, minimize litigation, establish clear legal standards, and reduce burden.

Executive Order 13563: Improving Regulation and Regulatory Review

      The Department has considered this rule in light of Executive Order 13563, dated January 18, 2011, and affirms that this regulation is consistent with the guidance therein.   

Paperwork Reduction Act

This rule does not impose information collection requirements under the provisions of the Paperwork Reduction Act, 44 U.S.C. Chapter 35.

LIST OF SUBJECTS in 22 CFR Part 41

Documentation of Nonimmigrants.

     For the reasons stated in the preamble, the Department of State amends 22 CFR

Part 41 to read as follows:

>

PART 41-[AMENDED]

1. The authority citation for Part 41 will continue to read as follows:

>

    Authority: 8 U.S.C. § 1104.

2. Section 41.54 is amended to read as follows:

§ 41.54  Intra-company transferees (executives, managers, and specialized knowledge employees)

(a) Requirements for L classification.  An alien shall be classifiable under the provisions of INA § 101(a)(15)(L) if:

(1) The consular officer is satisfied that the alien qualifies under that section; and either

(2) In the case of an individual petition, the consular officer has received official evidence of the approval by DHS of a petition to accord such classification or of the extension by DHS of the period of authorized stay in such classification; or

(3) In the case of a blanket petition,

(i) the alien has presented to the consular officer official evidence of the approval by DHS of a blanket petition listing only those intra-company relationships and positions found to qualify under INA § 101(a)(15)(L);

(ii) the alien is otherwise eligible for L-1 classification pursuant to the blanket petition; and,

(iii) the alien requests that he or she be accorded such classification for the purpose of being transferred to, or remaining in, qualifying positions identified in such blanket petition; or

(4) The consular officer is satisfied the alien is the spouse or child of an alien so classified and is accompanying or following to join the principal alien.

(b) Petition approval.  The approval of a petition by DHS does not establish that the alien is eligible to receive a nonimmigrant visa.

 (c) Alien not entitled to L-1 classification under individual petition.  The consular officer must suspend action on the alien's application and submit a report to the approving DHS office if the consular officer knows or has reason to believe that an alien applying for a visa as the beneficiary of an approved individual petition under INA § 101(a)(15)(L) is not entitled to such classification as approved.

(d) Labor disputes.  Citizens of Canada or Mexico shall not be entitled to classification under this section if the Secretary of Homeland Security and the Secretary of Labor have certified that:

(1) There is in progress a strike or lockout in the course of a labor dispute in the occupational classification at the place or intended place of employment; and,

(2) The alien has failed to establish that the alien's entry will not affect adversely the settlement of the strike or lockout or the employment of any person who is involved in the strike or lockout.

(e) Alien not entitled to L-1 classification under blanket petition.  The consular officer shall deny L classification based on a blanket petition if the documentation presented by the alien claiming to be a beneficiary thereof does not establish to the satisfaction of the consular officer that

(1) The alien has been continuously employed by the same employer, an affiliate or a subsidiary thereof, for one year within the three years immediately preceding the application for the L visa;

(2) The alien was rendering services in a capacity that is managerial, executive, or involves specialized knowledge throughout that year; or

(3) The alien is destined to render services in such a capacity, as identified in the petition and in an organization listed in the petition.

(f) Former exchange visitor.  Former exchange visitors who are subject to the two-year foreign residence requirement of INA § 212(e) are ineligible to apply for visas under INA § 101(a)(15)(L) until they have fulfilled the residence requirement or obtained a waiver of the requirement.

 (Date)           

 Janice L. Jacobs,

Assistant Secretary for Consular Affairs, 

Department of State

State Dept. Announces Blanket L Visa Processing Moves To The US Consulate General In Chennai

Blanket L Visa processing to move to the U.S. Consulate General in Chennai on December 1, 2011.

The U.S. Consulate General in Chennai will become the sole acceptance center in India for all applications for intra-company transfers under the blanket L category as of December 1, 2011.  The U.S. Embassy in New Delhi and U.S. Consulates in Mumbai, Kolkata and Hyderabad will no longer accept or process applications for this visa category.  The blanket L category includes specialized knowledge professionals, executives and managers.

All other visa processing procedures remain unchanged.

Please note that spouse and children visas (L2) and individual L visas (L1B and L1A individuals) may be processed at all posts in India—Chennai, Hyderabad, Kolkata, Mumbai, and New Delhi.

Please note that this is strictly an administrative change.  It is not a change in the law or policy of visas for Indian companies.

--------------------

H and L visas require approved petitions from the U.S. Department of Homeland Security before a visa interview can be scheduled. 

Specialized Workers (H1-B, H-4)
H visas are designed for skilled temporary workers in a specialty occupation to fill vacancies in the United States.  Applicants must possess a relevant four-year college degree or equivalent work experience to qualify. Spouses and children on H-4 visas may not work in the U.S.

In some circumstances, applicants may request a "B1 in Lieu of H" visa, which allows H-1B work on a B1 or B1/B2 visa. Click here for more information.

Intra-Company Transfers (L-1, L-2)
L visas are for intra-company transferees who, within the three preceding years, have been employed abroad continuously for one year, and who will be employed by a branch, parent, affiliate, or subsidiary of that same employer in the U.S.

Workers can be petitioned individually or under a blanket petition, and must qualify as either a specialized knowledge professional or an executive/manager. 

L-2 visa holders may work in the U.S. but must have employment authorization from the Department of Homeland Security.

How to Apply
H and L applicants follow the nonimmigrant visa application process. 

Please bring copies of your Form I-797 Notice of Action and your I-129 petition to the interview.   Blanket L applicants bring 3 copies of the I-129 for stamping.

Apply Early!  Although the vast majority of visas are delivered in a week or less, some applications require administrative processing.  Please do not make travel arrangements until you have received your visa.

Science and technology applicants may require administrative processing.  In some cases, administrative processing can take up to 5 or 6 weeks, although it is often faster. Bring supporting documents to minimize the processing time.

Fees
Complete fee information is available here.  Please note: Blanket L-1 applicants must pay an additional anti-fraud fee.

Questions?
Email: chennainiv [at] state [dot] gov (mailto:chennainiv [at] state [dot] gov)

L-1 Blanket petition

As long as you work full time and on the job described in your L-1B while you are INSIDE USA, it does not matter how long you stay outside USA.

Nonimmigrant Visas
Green Cards
Common Topics
Professions