L1A help!

[zippo]

Hi all,

I was newly hired (1 month) by a Company A (in country A) as a Manager/Executive and they intend to send me to company B (its subsidiary company in the US) as a Manager/Executive. However, as I am not qualified for 1 year rule, I cannot apply for L1A visa at the moment. They plan to apply B1 visa (Business Visitor) for me so that I can travel to the US for the purpose of advising Company B. Under B1 visa, certainly I cannot work as a manager/executive at Company A and I have to leave the US every 3 month.

My questions are:

1. After 1 year, am I qualified for 1-year rule to apply for L1A visa? My understanding is that after 1 year working as a manager/executive for company A, I am qualified for the 1-year rule. However, does the fact that I will stay in the US most of the time under B1 visa during the first year of employment with Company A affect my 1-year rule qualification?

2. Given the above, if I get L1A visa, am I qualified to apply for the GC after that? And when should the company process my GC at the latest/soonest?

Many thanks for your advice. This is very essential to me because my employment with Company A is for the purpose of sending me to work for Company B (in the US) on a long-term basis.

Zippo

[raghvi]

Hi all,

I was newly hired (1 month) by a Company A (in country A) as a Manager/Executive and they intend to send me to company B (its subsidiary company in the US) as a Manager/Executive. However, as I am not qualified for 1 year rule, I cannot apply for L1A visa at the moment. They plan to apply B1 visa (Business Visitor) for me so that I can travel to the US for the purpose of advising Company B. Under B1 visa, certainly I cannot work as a manager/executive at Company A and I have to leave the US every 3 month.

My questions are:

1. After 1 year, am I qualified for 1-year rule to apply for L1A visa? My understanding is that after 1 year working as a manager/executive for company A, I am qualified for the 1-year rule. However, does the fact that I will stay in the US most of the time under B1 visa during the first year of employment with Company A affect my 1-year rule qualification?

2. Given the above, if I get L1A visa, am I qualified to apply for the GC after that? And when should the company process my GC at the latest/soonest?

Many thanks for your advice. This is very essential to me because my employment with Company A is for the purpose of sending me to work for Company B (in the US) on a long-term basis.

Zippo

1. I wouldnt advise goign ahead with this plan, Firstly, one is not supposed to be working while on B1. Secondly, the rule says one has to be employed abroad continuously, short stay on B1s may be fine but such long stays on B1 will not help in adding the days towards the year rule.
2. If you do get your L1A, you can apply GC anytime, in fact L1A can apply under EB1 category and potentially get a GC within 1 year.

This is my opinion not legal advice.

[zippo]

1. I wouldnt advise goign ahead with this plan, Firstly, one is not supposed to be working while on B1. Secondly, the rule says one has to be employed abroad continuously, short stay on B1s may be fine but such long stays on B1 will not help in adding the days towards the year rule.
2. If you do get your L1A, you can apply GC anytime, in fact L1A can apply under EB1 category and potentially get a GC within 1 year.

This is my opinion not legal advice.

Thanks Raghvi. Obviously if I stay at home country and wait for 1 year to apply L1A, it is fine. However I have to visit B to draw up a business plan. Just one more question: in your opinion, how's about 3 month stay in the US under B1 and whether this period is excluded from counting 1 year rule?

[raghvi]

Thanks Raghvi. Obviously if I stay at home country and wait for 1 year to apply L1A, it is fine. However I have to visit B to draw up a business plan. Just one more question: in your opinion, how's about 3 month stay in the US under B1 and whether this period is excluded from counting 1 year rule?

USCIS Clearly says :

"...........Periods spent in the United States in lawful status for a branch of the same employer or a parent, affiliate, or subsidiary thereof and brief trips to the United States for business or pleasure shall not be interruptive of the one year of continuous employment abroad but such periods shall not be counted towards fulfillment of that requirement......"

USCIS is not very clear on how small or long the "brief period" can be, but its better to be safe rather than argue with USCIS on their interpretation.

So if you spend brief periods example a week or so, though it wont interrupt your continuous calculation but wont add also, example out of 52 weeks if you spend 2-3 Weeks in US on a B1 then in effect it means you have to spend 52 +(2-3 Weeks ) i.e. around 55 Weeks abroad continuously to qualify for the 52 weeks. But, if you spend 2-3 Months pn B1, it wont be added, you would have to spend one full year outside again after every such 2-3 Month trip. Example, if you are in US on a B1 from 01-Aug 2013 till 01-Oct-2013 then your 1 Year clock will start from 01-Oct-2013 and you would qualify for this rule only on 01-Oct-2014, but if you again come back on B1 from 01-Jan-2014 and stay till 01-Apr-2014 then your 1 Year clock will again start from 01-Apr-2014 and you would qualify for this basic requirement again only on 01-Apr-2015.

This is my opinion not legal advice.

[zippo]

USCIS Clearly says :

"...........Periods spent in the United States in lawful status for a branch of the same employer or a parent, affiliate, or subsidiary thereof and brief trips to the United States for business or pleasure shall not be interruptive of the one year of continuous employment abroad but such periods shall not be counted towards fulfillment of that requirement......"

USCIS is not very clear on how small or long the "brief period" can be, but its better to be safe rather than argue with USCIS on their interpretation.

So if you spend brief periods example a week or so, though it wont interrupt your continuous calculation but wont add also, example out of 52 weeks if you spend 2-3 Weeks in US on a B1 then in effect it means you have to spend 52 +(2-3 Weeks ) i.e. around 55 Weeks abroad continuously to qualify for the 52 weeks. But, if you spend 2-3 Months pn B1, it wont be added, you would have to spend one full year outside again after every such 2-3 Month trip. Example, if you are in US on a B1 from 01-Aug 2013 till 01-Oct-2013 then your 1 Year clock will start from 01-Oct-2013 and you would qualify for this rule only on 01-Oct-2014, but if you again come back on B1 from 01-Jan-2014 and stay till 01-Apr-2014 then your 1 Year clock will again start from 01-Apr-2014 and you would qualify for this basic requirement again only on 01-Apr-2015.

This is my opinion not legal advice.

Many thanks again. Please also advise if Company B (in the US) is registered as a US company but it is owned by Company A (foreign company) then what could be the difference with my L1A status? Does the 1 year rule apply?

[raghvi]

Many thanks again. Please also advise if Company B (in the US) is registered as a US company but it is owned by Company A (foreign company) then what could be the difference with my L1A status? Does the 1 year rule apply?

It doesnt matter who owns B. If you want to work for B in US on L1 visa you need to work with an subsidiary/parent/child/sister of company B outside US for 1 Year.

This is my opinion not legal advice.