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Intracompany Transferees
(1) Admission of intracompany transferees --
(i) General. Under section 101(a)(15)(L) of the Act, an alien
who within the preceding three years has been employed abroad for
one continuous year by a qualifying organization may be admitted
temporarily to the United States to be employed by a parent, branch,
affiliate, or subsidiary of that employer in a managerial or executive
capacity, or in a position requiring specialized knowledge. An
alien transferred to the United States under this nonimmigrant
classification is referred to as an intracompany transferee and
the organization which seeks the classification of an alien as
an intracompany transferee is referred to as the petitioner. The
Service has responsibility for determining whether the alien is
eligible for admission and whether the petitioner is a qualifying
organization. These regulations set forth the standards applicable
to these classifications. They also set forth procedures for admission
of intracompany transferees and appeal of adverse decisions. Certain
petitioners seeking the classification of aliens as intracompany
transferees may file blanket petitions with the Service. Under
the blanket petition process, the Service is responsible for determining
whether the petitioner and its parent, branches, affiliates, or
subsidiaries specified are qualifying organizations. The Department
of State or, in certain cases, the Service is responsible for determining
the classification of the alien.
(ii) Definitions.
(A) Intracompany transferee means an alien who, within three
years preceding the time of his or her application for admission
into the United States, has been employed abroad continuously for
one year by a firm or corporation or other legal entity or parent,
branch, affiliate, or subsidiary thereof, and who seeks to enter
the United States temporarily in order to render his or her services
to a branch of the same employer or a parent, affiliate, or subsidiary
thereof in a capacity that is managerial, executive, or involves
specialized knowledge. 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.
(B) 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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(C) Executive capacity means an assignment within an organization
in which the employee primarily:
((1)) Directs the management of the organization or a major component
or function of the organization;
((2)) Establishes the goals and policies of the organization,
component, or function;
((3)) Exercises wide latitude in discretionary decision-making;
and
((4)) Receives only general supervision or direction from higher
level executives, the board of directors, or stockholders of the
organization.
(D) 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.
(E) "Specialized knowledge professional" means
an individual who has specialized knowledge as defined in
paragraph
(l)(1)(ii)(D)
of this section and is a member of the professions as defined
in section 101(a)(32) of the Immigration and Nationality
Act.
(F) New office means an organization which has been doing business
in the United States through a parent, branch, affiliate, or subsidiary
for less than one year.
(G) Qualifying organization means a United States or foreign firm,
corporation, or other legal entity which:
((1)) Meets exactly one of the qualifying relationships specified
in the definitions of a parent, branch, affiliate or subsidiary
specified in paragraph (l)(1)(ii) of this section;
((2)) Is or will be doing business (engaging in international
trade is not required) as an employer in the United States and
in at least one other country directly or through a parent, branch,
affiliate, or subsidiary for the duration of the alien's stay in
the United States as an intracompany transferee; and
((3)) Otherwise meets the requirements of section 101(a)(15)(L)
of the Act.
(H) Doing business means the regular, systematic, and continuous
provision of goods and/or services by a qualifying organization
and does not include the mere presence of an agent or office of
the qualifying organization in the United States and abroad.
(I) "Parent" means a firm, corporation, or other
legal entity which has subsidiaries.
(J) "Branch" means an operating division or office
of the same organization housed in a different location.
(K) Subsidiary means a firm, corporation, or other legal entity
of which a parent owns, directly or indirectly, more than half
of the entity and controls the entity; or owns, directly or indirectly,
half of the entity and controls the entity; or owns, directly or
indirectly, 50 percent of a 50-50 joint venture and has equal control
and veto power over the entity; or owns, directly or indirectly,
less than half of the entity, but in fact controls the entity.
(L) Affiliate means
((1)) One of two subsidiaries both of which are owned and controlled
by the same parent or individual, or
((2)) One of two legal entities owned and controlled by the same
group of individuals, each individual owning and controlling approximately
the same share or proportion of each entity, or
((3)) In the case of a partnership that is organized in the United
States to provide accounting services along with managerial and/or
consulting services and that markets its accounting services under
an internationally recognized name under an agreement with a worldwide
coordinating organization that is owned and controlled by the member
accounting firms, a partnership (or similar organization) that
is organized outside the United States to provide accounting services
shall be considered to be an affiliate of the United States partnership
if it markets its accounting services under the same internationally
recognized name under the agreement with the worldwide coordinating
organization of which the United States partnership is also a member.
(M) "Director" means a Service Center director
with delegated authority at 8 CFR 103.1.
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California (916)-669-0649
Florida (239)-643-5529
(2) Filing of petitions --
(i) Except as provided in paragraph (l)(2)(ii) and (l)(17) of
this section, a petitioner seeking to classify an alien as an intracompany
transferee shall file a petition on Form I-129, Petition for Nonimmigrant
Worker, only at the Service Center which has jurisdiction over
the area where the alien will be employed, even in emergent situations.
The petitioner shall advise the Service whether it has filed a
petition for the same beneficiary with another office, and certify
that it will not file a petition for the same beneficiary with
another office, unless the circumstances and conditions in the
initial petition have changed. Failure to make a full disclosure
of previous petitions filed may result in a denial of the petition.
(ii) A United States petitioner which meets the requirements of
paragraph (l)(4) of this section and seeks continuing approval
of itself and its parent, branches, specified subsidiaries and
affiliates as qualifying organizations and, later, classification
under section 101(a)(15)(L) of multiple numbers of aliens employed
by itself, its parent, or those branches, subsidiaries, or affiliates
may file a blanket petition on Form I - 129 with the director having
jurisdiction over the area where the petitioner is located. The
blanket petition shall be adjudicated and maintained at the appropriate
Service Center. Approved blanket petition files shall be maintained
indefinitely by that Service Center. The petitioner shall be the
single representative for the qualifying organizations with which
the Service will deal regarding the blanket petition.
(3) Evidence for individual petitions. An individual petition
filed
on Form I - 129 shall be accompanied by:
(i) Evidence that the petitioner and the organization which employed
or will employ the alien are qualifying organizations as defined
in paragraph (l)(1)(ii)(G) of this section.
(ii) Evidence that the alien will be employed in an executive,
managerial, or specialized knowledge capacity, including a detailed
description of the services to be performed.
(iii) Evidence that the alien has at least one continuous year
of full-time employment abroad with a qualifying organization within
the three years preceding the filing of the petition.
(iv) Evidence that the alien's prior year of employment abroad
was in a position that was managerial, executive, or involved specialized
knowledge and that the alien's prior education, training, and employment
qualifies him/her to perform the intended services in the United
States; however, the work in the United States need not be the
same work which the alien performed abroad.
(v) If the petition indicates that the beneficiary is coming to
the United States as a manager or executive to open or to be employed
in a new office in the United States, the petitioner shall submit
evidence that:
(A) Sufficient physical premises to house the new office have
been secured;
(B) The beneficiary has been employed for one continuous year
in the three year period preceding the filing of the petition in
an executive or managerial capacity and that the proposed employment
involved executive or managerial authority over the new operation;
and
(C) The intended United States operation, within one year of the
approval of the petition, will support an executive or managerial
position as defined in paragraphs (l)(1)(ii)(B) or (C) of this
section, supported by information regarding:
((1)) The proposed nature of the office describing the scope of
the entity, its organizational structure, and its financial goals;
((2)) The size of the United States investment and the financial
ability of the foreign entity to remunerate the beneficiary and
to commence doing business in the United States; and
((3)) The organizational structure of the foreign entity.
(vi) If the petition indicates that the beneficiary is coming
to the United States in a specialized knowledge capacity to open
or to be employed in a new office, the petitioner shall submit
evidence that:
(A) Sufficient physical premises to house the new office have
been secured;
(B) The business entity in the United States is or will be a qualifying
organization as defined in paragraph (l)(1)(ii)(G) of this section;
and
(C) The petitioner has the financial ability to remunerate the
beneficiary and to commence doing business in the United States.
(vii) If the beneficiary is an owner or major stockholder of the
company, the petition must be accompanied by evidence that the
beneficiary's services are to be used for a temporary period and
evidence that the beneficiary will be transferred to an assignment
abroad upon the completion of the temporary services in the United
States.
(viii) Such other evidence as the director, in his or her discretion,
may deem necessary.
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