Connecticut, US
While US immigration laws allow H-1B status holders to extend their status in cases of lengthy sponsorship process, the same is not true for L-1B status holders. Many wonder how to ensure that employees who hold L-1B visa can remain legally employed in the US during the pendency of the permanent residence sponsorship.
The time limitations on the L-1B status
The L-1B specialized knowledge professional status is given for a maximum of five years. In many cases, these intracompany transferees return to their home country after an international assignment. Sometimes, they move on to another global assignment. There are occasions, however, when the US assignment is extended. It might be that the business needs of the company require the employee to stay for over five years. It might be that the position becomes permanent. The reasons are many, but the result is the same—if permanent residence sponsorship process is not completed within five years, the employee will have to leave the US.
Plan the steps to take to ensure long-term transition
Here are some steps that employers can take to prevent this difficult situation from occurring.
First, as much as possible, plan long term for every international assignee to the US. Understand that five years is the outer limit on the assignment. US immigration laws supersede business reasons, so there will not be an exception. Time spent abroad can be added to the total time spent in L-1B status, but it might not be enough. Make sure everyone involved understands that in this status, the clock is ticking.
Second, as soon as the decision is made to localize the employee in the US, start applying for H-1B status. As H-1B status can be extended during the pendency of the sponsorship, it will be preferable for an employee whose case might take a long time, particularly if that employee was born in India or China. Because H-1Bs are subject to an annual limit on the number of new petitions that are processed by the USCIS, a petition might not be selected in any given year. Applying every year can maximize the beneficiary’s chances of getting this status. Although a selection is never guaranteed, it is a chance worth taking.
Third, consider starting permanent residence sponsorship sooner rather than later. Even for individuals who are not from oversubscribed countries, the process can take a couple of years, and the L-1B status needs to be maintained in the meantime. It might be prudent to consider making an exception to the established sponsorship policies depending on the employee’s status in the US as well as the needs of the business.
Finally, consider the worst case scenario—not completing the sponsorship process in time, and not securing another status that allows the employee to remain in the US. Sending an employee abroad might be the only option at that point. Spending one full year abroad might qualify them to return to the US again in L-1B status. However, that position at another global facility must be secured well in advance of the expiration of the L-1B status, as well as potentially a work visa if the employee is not going to their home country.
If you would like to know more about strategic long-term planning for L-1B employees, please contact me at alacombe@fragomen.com.