Indian-Born L-1B Visa Holders: Everyone Hates You (OK - that's a Clickbait Headline)

The obstacles faced by Indian-born L-1B visa holders (and their spouses) under current U.S. immigration law are epic; this post will provide insights and ideas on what can be done.

If you come to the United States on a L-1B visa from India, you might not have any idea at all the challenges you could face. It might seem like a cool international opportunity; a better option than H-1B. In some ways that is true. But it is far from straightforward.

This post seeks to provide you with some insights — particularly if you hope to stay in the United States beyond your temporary assignment.

This post (beyond the paywall) will discuss some of the various challenges that Indian-born L-1B visa holders face and offer some ideas about what can be done. If you have questions, please post them in the Comments and I will do my best to respond.

1. Basics of L-1s.

2. L-1A versus L-1B; and the Holy Grail of EB-1(3).

3. Blanket L versus Individual L and Let’s Be Honest About Why All the Hate.

4. L-1B = 5 Year Max (That’s it!), even with an I-140 Approval.

5. I Hope You “Married Up” - Your Spouse May be the Key; Any Chance She was Born in Dubai?

6. Pick Your Poison: Regarding Your Cousin’s Friend in New Jersey and H-1B Cap Consulting Firms.

7. H-1B Cap-Exempt Employers.

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01 - Basics of L-1s.

L-1 visas are temporary work visas available to intracompany transferees, that is, people who work outside the United States for a qualifying subsidiary or affiliate of a U.S. company for at least 12 months and are transferred into the United States.

L-2 visas are for spouses and unmarried children under 21.

This post will provide summary commentary. For in-depth consideration of L-1 visas -

• The USCIS website provides information on L-1 visas here.

• The USCIS policy manual (used by USCIS adjudicators) provides information about L-1 visas here.

• The U.S. Department of State’s Foreign Affairs Manual (used by consular officers) provides information on L-1 visas here.

To be clear, L-1 visas are available for people of every nationality, but this post relates to L-1Bs from India because they face certain complications as a result of the “per country” limits for green card processing which means that people born in India have a very slow road to a green card. In general L-1B visa holders only get 5 years of L-1B time and it will take longer than that to get a green card; so that’s a big problem!

Also, the U.S. consulate in Chennai, which processes all L-1 visas for Indians, is generally hostile to L-1 filings. A lot of people face delays or pushback on visa processing. The U.S. consulate in Chennai is probably the strictest U.S. consulate in the world for L-1s.

Overall, U.S. government officials have a general hostility towards Indian L-1 visa holders. This is experienced at both U.S. consulates and at USCIS; and sometimes the L-1 employers are surprisingly opaque about what employees will experience and challenges they will face.

My newsletter aims to be a credible resource for professionals in L-1 visa status (and other temporary visa status) trying to navigate the U.S. immigration system. I certainly wish the system were better but this is the only system we have.

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02 - L-1A versus L-1B; and the Holy Grail of EB-1(3).

The L-1 visa category has two sub-categories -

• L-1A is for managers and executives.

• L-1B is for specialized knowledge workers.

L-1A visa holders are eligible for 7 consecutive years in L-1A visa status and in some instances may be eligible for EB-1(3) green card processing.

EB-1(3) is very attractive for people born in India given how slow the other categories (EB2 and EB3) are.

• An important thing to know is that to qualify for L-1A, the U.S. position must be managerial;

• But to qualify for EB-1(3), both the U.S. and the foreign job must be managerial.

Sometimes people think they can come to the U.S. in L-1B and be promoted to manager and then get L-1A. That is true! And it is nice because you go from a 5 year limit (L-1B) to a 7 year limit (L-1A) —

BUT - a promotion to manager in the U.S. will not qualify you for EB-1(3), unless you were also a manager abroad for at least a year preceding your transfer.

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L-1B workers must qualify based on “specialized knowledge.” The definition of “specialized knowledge” can be found at 8 C.F.R. Section 214.2(l):

Specialized knowledge means special knowledge possessed by an individual of the petitioning organization's product, service, research, equipment, techniques, management, or other interests and its application in international markets, or an advanced level of knowledge or expertise in the organization's processes and procedures.

L-1A workers must be coming to the United States in a “managerial capacity” or as an executive. The definition of “managerial capacity” can also be found at 8 C.F.R. Section 214.2(l):

Managerial capacity means an assignment within an organization in which the employee primarily:

(1) Manages the organization, or a department, subdivision, function, or component of the organization;

(2) Supervises and controls the work of other supervisory, professional, or managerial employees, or manages an essential function within the organization, or a department or subdivision of the organization;

(3) Has the authority to hire and fire or recommend those as well as other personnel actions (such as promotion and leave authorization) if another employee or other employees are directly supervised; if no other employee is directly supervised, functions at a senior level within the organizational hierarchy or with respect to the function managed; and

(4) Exercises discretion over the day-to-day operations of the activity or function for which the employee has authority. A first-line supervisor is not considered to be acting in a managerial capacity merely by virtue of the supervisor's supervisory duties unless the employees supervised are professional.

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Ideally an employer will work with an employee to see if there is any viable basis to qualify the employee upfront for L-1A and possibly EB-1(3). Taking time to plan out a L-1 assignment is increasingly important to manage expectations for all parties.

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