L1A to Green Card
Designed for managerial employees of multinational organizations, both the L1A temporary work visa classification and the EB1C permanent residency (green card) category require evidence that the sponsored individual will be employed as a manager in the U.S. and that the individual has at least one full year of previous employment outside the U.S. with the same multinational organization for which they will work in the U.S.
Given these similarities between L1A and EB1C, when a U.S. employer is ready to sponsor a green card on behalf of an individual holding L1A status, the natural route in most cases is to apply in the EB1C category. However, eligibility for L1A status does not automatically guarantee eligibility for EB1C sponsorship due to critical differences in the regulatory framework as outlined below.
Differences in Requirements for L1A and EB1C
Calculating the One Year of Qualifying Employment Abroad
In the L1A context, regulations require evidence of one year of qualifying employment abroad within the three years preceding filing of the petition[1]. In instances in which the individual has already been admitted to the U.S. to work for the sponsoring organization, the United States Citizenship and Immigration Service (USCIS)’s Policy Manual clarifies that the relevant three-year period is tolled during that time and adjusted to the period before their admission to the U.S. In any case, the relevant point in time for determining whether the individual meets the one year of qualifying employment abroad requirement is the date the initial L-1 petition is filed, regardless of when the individual was or will be admitted to the U.S.
In the EB1C context, regulations provide two reference points for determining whether the required one year of qualifying employment abroad has been established. If the individual is outside the U.S., then it is necessary to demonstrate one year of qualifying employment within the three-year period immediately preceding filing of the petition[2], similar to the L1A requirement. However, if the individual is already in the United States working for the sponsoring organization, it is necessary to show one year of qualifying employment within the three-year period preceding the individual’s entry to the U.S. as a nonimmigrant[3].
In practice, this subtle difference between the L1A and EB1C reference points for establishing the one year of qualifying employment abroad requirement rarely has an impact, but there may be instances in which an individual meets the requirement for L1A and not for EB1C. For example, there is often a gap of at least a few weeks between the time an L1A petition is filed on behalf of an individual outside the U.S. and the time the individual is ultimately admitted to the U.S. in L1A status, and this gap could result in a scenario in which, by the time the individual enters the U.S., they can no longer show one full year of employment with the qualifying organization within the preceding three years even though they were able to meet the requirement a few weeks prior when the petition was filed.
Nature of Qualifying Employment Abroad
While both the L1A and EB1C classifications require that the individual be employed as a manager in the U.S., the regulations differ with respect to the nature of the qualifying employment abroad. Specifically, EB1C regulations require that the one year of employment abroad also be in a managerial capacity,[4] while L1A regulations allow for the individual to have been employed abroad as a manager or in a specialized knowledge position.[5] Accordingly, there may be instances in which individuals are working as managers in L1A status in the U.S., but they are not eligible for green card sponsorship in the EB1C category because they were not employed as managers before transferring to the U.S.
Doing Business
The EB1C classification requires that the prospective U.S. employer be doing business for at least one full year at the time the petition is filed.[6] However, L1A regulations allow for an individual to come to the U.S. to open or work for a new office that has been in business for less than one year.[7] Thus, there may be instances in which an employee holds L1A status but will not be eligible for EB1C sponsorship until the U.S. employer has been in business for a full year.
Qualifying Corporate Relationship
Regulations for both L1A and EB1C require that, at the time the petition is filed, the U.S. employer have a qualifying corporate relationship with the foreign employer, such as a parent, subsidiary, or affiliate relationship. The difference arises with respect to what happens when that corporate relationship ends after the petition is filed. EB1C regulations require the qualifying corporate relationship to exist at the time the petition is filed and remain in existence all the way until the petition is adjudicated.[8] Accordingly, a change in the relationship after the petition is filed but before it is approved, such as would result if the foreign employer were to go out of business or if it were acquired by a different company, would result in the EB1C no longer being a viable option. However, if the relationship remained intact until the petition were approved and then it changed, this would not impact the petition validity.
In the L1A context, a change in the qualifying corporate relationship after the petition is filed does not impact eligibility so long as the U.S. employer maintains a qualifying corporate relationship with at least one foreign entity for the duration of the sponsored employee’s stay in the U.S. in L1A status.[9] Thus, the individual’s previous employer abroad could cease to exist, but if the company maintained a legal unit in at least one country outside the U.S., the individual could remain eligible for L1A status even though not eligible for EB1C sponsorship.
SUMMARY
It is often assumed that if an employee holds L1A status in the U.S., they will qualify for green card sponsorship in the EB1C category. While this may be the case, it is not guaranteed, and differences in the regulatory framework regarding the one year of qualifying employment abroad, the nature of the qualifying employment abroad, whether the U.S. employer is doing business, and maintenance of the qualifying corporate relationship can result in situations where an individual is eligible for L1A status but does not qualify for EB1C sponsorship. In those scenarios, it is necessary to consider alternative green card sponsorship categories.
[1] 8 C.F.R. §214.2(l)(3)(iii)
[2] 8 C.F.R. §204.5(j)(3)(i)(A)
[3] 8 C.F.R. §204.5(j)(3)(i)(B)
[6] 8 C.F.R. §204.5(j)(3)(i)(D)
[8] 8 C.F.R. §103.2(b)(1)