For many potential EB-5 investors, EB-5 is there only path to the United States. However, for those individuals that are executives or managers in a foreign company might be eligible to apply for an L-1A (Intercompany Transferee Executive or Manager) visa.
The L-1A visa allows for an executive or manager to transfer within a multinational company. There are many significant differences between obtaining a visa through an L-1A as compared to EB-5, including some strict requirements.
Immigrant Intent
EB-5 is an immigrant visa, meaning successful applicants receive conditional permanent residency (a green card) from the start. Additionally, to convert from a two-year conditional green card to a regular green card an EB-5 investor must simply demonstrate that their investment led to the creation of 10 new jobs.
By comparison, L-1A is a nonimmigrant visa that only allows for a temporary stay in the U.S. L-1A visa holders attempt to convert to an EB-1C, which does have immigrant intent. The following steps are required to convert from an L-1A to an EB-1C visa:
- There must be a qualifying corporate relationship between the U.S. entity and the foreign entity. This relationship must have existed for at least 1 year prior to filing the EB-1C petition.
- The applicant must have been employed outside the U.S. in a managerial or executive capacity for at least 1 continuous year in the 3 years prior to entry to the U.S. on the L-1A visa.
- The applicant must continue to work in the U.S. company in a managerial or executive capacity, defined by USCIS as:
- Executive capacity: Directs management, establishes goals/policies, exercises wide latitude in decision-making.
- Managerial capacity: Manages organization, department, or function; supervises other professional employees or manages an essential function.
- The U.S. entity must be actively doing business, and the business must be able to adequately support the executive/managerial role.
Investment Amount
While EB-5 has a clear minimum investment amount of $800,000, there is no required investment amount for an L-1A visa holder. However, the business in which the L-1A visa holder serves as an executive or manager must remain operational, and it must be able to support the executive.
There is no specific salary requirement for the executive or manager, but their salary or compensation package must make sense. Situations that can raise red flags for USCIS include:
- Very low compensation without a clear explanation such as equity-only pay in a startup without salary.
- Pay inconsistent with the claimed level of responsibility.
- Salary that suggests the individual is doing technical or operational work rather than supervisory or strategic work.
Active vs. Passive Responsibility
A key difference between the two visa categories is the activity level that is required of the applicants. An EB-5 investor can make a passive investment through a USCIS-approved regional center and then can focus their attention on getting settled in the U.S. and are free to seek any employment opportunities that they see fit.
By comparison, the L-1A applicant must hold an executive or managerial position for a U.S. entity that is related to foreign company for which they also held an executive or managerial position. The applicant is not free to seek other employment and must ensure that the U.S. entity is operational and has the ability to support their position.
The above article is intended for informational purposes only and is not based upon any specific set of facts. Anyone with specific questions or issues concerning EB-5 or H1-B should consult an immigration attorney.
