If a foreign worker owns either company s/he may be able to demonstrate that an employer/employee relationship exists if the control of the foreign worker’s work is exercised by a board of directors, preferred shareholders, investors or others.
FAQs about L-1 Requirements
Does the U.S. employer have to demonstrate an employer/employee relationship with the foreign worker?
Yes. There must be an employer/employee relationship between the U.S. employer and the foreign worker. Generally, the relationship is demonstrated by the fact that the U.S. employer may hire, pay, fire and supervise or otherwise control the foreign worker’s work.
Do both the U.S. and foreign company have to be of a certain size in terms of employees or income?
No.
Do both the U.S. and foreign company have to be in the same business?
No.
Does the foreign worker have to continue to work in the same capacity in the United States?
Yes. If the foreign worker was employed in a ‘specialized knowledge’ or managerial or executive capacity, s/he must continue in that capacity in the United States.
Does the foreign worker have to have been employed full-time in the United States?
No. However, the foreign worker must dedicate a significant portion of time on a regular and systematic basis.
Does the foreign worker have to be employed full-time abroad?
Yes. The foreign worker is required to have continuous full-time employment abroad for 1 year.
How long does the foreign worker have to have been employed abroad?
The foreign worker must have been continuously employed abroad for at least 1 year within the past three 3 years preceding the filing of the L-1 petition.
What is executive capacity?
Where the employee directs the management of the organization or a major component or function; establishes goals and policies; exercises wide latitude in discretionary decision making; and received only general supervision or direction from higher level executives, board of directors or stockholders, s/he is employed in an executive capacity.
What is managerial capacity?
Where the employee manages the organization, department, subdivision, function or component; supervises and controls the work of other supervisory, professional or managerial employees or manages an essential function within the organization or department or subdivision; has authority to hire and fire or recommend personnel actions, or if not direct supervision, functions at a senior level… Read More
