Question: The H-1B cap is full now, so what other types of work visas are available?

Attorney Yu: Seeing as the H-1B cap is full, then as long as it's appropriate to your situation, you could use an H-3 trainee visa, O-1 extraordinary ability visa, E-1 or E-2 treaty trader or investor visa or L-1 multinational manager or executive visa to maintain legal status and work in the US.

Question: You just mentioned the L-1 visa. What's the difference between L-1 and H-1 visas?

Attorney Yu: The H-1B visa has an academic degree requirement, whereas L-1 does not. H-1B requires a bachelor's degree or the equivalent in a specialty occupation. L-1 does not have an academic degree requirement; experienced managers and executive who have successfully run a company can apply on this basis. However, to qualify for an L-1 visa, you must have worked at the foreign parent company or branch office of a US company for at least one year in the past three years. L-1 is for internal transfers within a multinational company. If you have not worked for the foreign parent company or branch office of a US company, then you do not meet the requirements for L-1.

In addition, the periods of stay in the US for these visas differ. L-1A multinational managers and executives can stay in the US a maximum of 7 years, L-1B special knowledge workers for a maximum of 5 years, and H-1B workers for a maximum of 6 years.

Question: What are the requirements in terms of company structure for applying for an L-1 visa?

Attorney Yu: The requirements for company structure are as follows:

1. The foreign company that is applying for L-1 must have a subsidiary company in the US. The purpose of the US subsidiary should be to develop the parent company's business interests in the US. If the foreign parent company already has a subsidiary in the US, then both companies need to be in good financial shape. Whether the subsidiary is a pre-existing company or a new one, the foreign parent company must control at least 51% of its shares.
2. The L-1 applicant must have worked at the foreign parent company continuously for one year in the last three years, and his or her position at the parent company must be similar to the position for which he or she is being sent to the US, such as management or technical personnel.
3. The parent company must invest funds in the subsidiary to support its start-up and operation. The investment amount does not need to be very large, but it must be enough to cover the subsidiary's expenses.

Question: What sort of proof is required for these corporate structural requirements?

Attorney Yu: The documentation needed for an L-1 multinational manager or executive petition includes documents about the parent company (including business licenses and permits, company financial reports, a description of the organizational structure, etc.); documents about the US subsidiary company (including founding and registration documents, business licenses and permits, names of the Board of Directors, distribution of shares, rental agreement for office space, etc.) and about its financial and operational situation and its employment of US workers; and the L-1 beneficiary's documentation (including resume, letter of appointment, etc.).

Question: What factors would make it difficult to obtain an L-1 visa?

Attorney Yu: Factors that might make it difficult to succeed in obtaining an L-1 visa could include the US subsidiary company not having any business, or the documentation being incomplete.

Question: Without giving any names of your clients, can you tell us about an L-1 case handled by your firm that went smoothly and ended successfully?

Attorney Yu: Due to the rapid pace of economic development in China, over the last few years we have helped numerous Chinese companies to set up a subsidiary in the US and apply for L-1 visas. These companies range from biotechnology and high-tech companies, to import and export companies and manufacturing companies, and even energy companies. For instance, we helped set up a US company for a scientific research company located in Beijing employing less than 100 people, assisted them with getting their US business going and then successfully submitted an L-1 petition for the CEO of the US company, and she went to her interview in Beijing and obtained a visa without a problem.

Question: How long does the process of obtaining an L-1 visa take?

Attorney Yu: The time it takes the client to prepare the needed documentation varies. But from the time we submit the petition to USCIS to the time we receive the decision is usually two to four months. The petitioner can also elect to use Premium Processing, which costs extra, but you will get a response from USCIS in two weeks.

Question: After obtaining an L-1 visa, is it possible to apply for a green card?

Attorney Yu: L-1 visa holders can apply to become permanent residents, that is, to obtain green cards. Even though L-1 visa holders are required to depart the US at the end of their authorized period of stay, this type of visa allows the visa holder to have dual intent, that is, to have nonimmigrant and immigrant intent at the same time. To put it another way, applying for a green card will not have a negative impact on your L-1 status. Just as with H-1B visas, while the visa is valid, even though it is a nonimmigrant visa, you can apply for a green card. Also, L-1A multinational managers and executives who are applying for green cards do not need to go through labor certification. Once the company has been operating for one year and is in good financial shape, L-1 managers and executives can apply for first preference employment-based immigration (EB-1).

Question: What is the difference between applying for a green card through L-1 and through investor immigration?

Attorney Yu: There are many differences between these two paths to permanent residence, which cannot be explained in a short answer. We should discuss this matter another time.