swissbrit.CT

Dear all,
Long time lurker, first time poster...
I have been reading up here and elsewhere on visas, but have a couple of questions that don't seem to be answered clearly (enough), even on USCIS.
The situation is that I'm a UK citizen, married for just under a year to a Swiss citizen. We have 2 kids already (I know...). I have been offered a job in the US, and am just about to go into contract negotiations with the firm, so I want to clear a couple of things up before I go asking for the impossible from them. They have made noises to the effect that they would be able to get an H1B work visa for me. This would allow me to start sooner rather than later (from October onwards). I have a UK Master's degree and about 15 years' working experience.
1) Up until last September, I worked in a managerial capacity for the firm that have made the offer for their operations here in Switzerland. I had been with them for around 9 years, working my way up to leading a 5 strong team in a specialist area. According to the L1 requirements, one year from the previous 3 should have been spent with the firm abroad. This is true in my case, but I don't currently work for them. Is an L1 intra-company transfer an option here?
2) If not, and a H1B visa is appropriate, I read on USCIS that the required labor certification is valid for 180 days. Does this mean that if the firm made an I140 application for me within that period, no further labor certification would be necessary, if the AOS was EB2 based?
3) Talking of the attempted move to LPR status within 180 days, as the EB2 category is current, but I485 can't be submitted concurrently with I140 at this time, from which point would I be able to file my I485, the I130 for my spouse and then her I485?
4) Developing the above question, it says at USCIS that on the I140 the spouse's intentions should be entered too, but as the family based category's date is ca. July 08, would this mean that if all goes to plan, my I485, her I130 (and others) would be filed when the I140 has completed (let's say sometime next year for the sake of argument), and if/when that comes through, I would then file a I485 and possibly an I765 too for my spouse. This would give her a current date of let's say July 11, which would mean she may be able to come off her H4 and work in a couple of years or so. Is that right?
5) Finally, from what date is the duration of marriage counted? From first admission to the country (on an H1B/H4) or from application for I485/I130?

Apologies for the lengthy questions (and first post). I just want to confirm or not confirm that I have the process more or less straight before I start talking to the company's HR/lawyers. My wife (also an experienced professional) has said she could see herself not working for a couple of years, but after that she would want to come home and continue with her career if working in the US was not possible within a reasonable timeframe. This has a direct bearing on what i can offer the company in terms of time commitment (up to 3 years or more than 3 years) so the rough process for any possible work authorization for her is key to my planned negotiations.

Thanks for any clarification.

Jerseygirl

Welcome to BE.

It is not a requirement to work 1 year out of 3 overseas for the L1 Visa.

sangiano

I believe it is.

8CFR 214.2(l)(1)(i)

Sec. 214.2(l) 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. .......

sangiano

It might well be. The regulations only appear to require one year within the previous three, not that you are working with the company prior to admission. For the sake of completeness 101(a)(15)(L) of the INA says:

(L) 3c/ subject to section 214(c)(2), an alien who, within 3 years preceding the time of his application for admission into the United States, has been employed continuously for one year by a firm or corporation or other legal entity or an affiliate or subsidiary thereof and who seeks to enter the United States temporarily in order to continue to render his services to the same employer or a subsidiary or affiliate thereof in a capacity that is managerial, executive, or involves specialized knowledge, and the alie n spouse and minor children of any such alien if accompanying him or following to join him;

This would give the advantages of being able to commence employment before October 1st, not being subject to the H1B cap and allowing your spouse employment privileges as an L-2.

If you are applying under EB2, other than a National Interest Waiver, a separate LC is required.

Whether you choose the L1 or H1B route, an immigrant application under EB1C may be possible, depending on your previous duties with the company abroad. This does not require LC, so could save 6-12 months.

Currently, there is no restriction on concurrently filing I-485 with the I-140 if the the category is current. Both EB2-ROW and EB1 are current.

Your spouse and children would be a derivative applicants and could file I-485s based on your pending or approved I-140 petition.

An I-130 for Family Based immigration wouldn't be needed.

Since you are already married, an I-130 is not necessary (see above). You should be able to file I-485 for all family members with your I-140 application if you wish, or upon approval - it is your choice.

If L1 is an option, then your spouse would be able to apply for an EAD after first arriving in the US. Once received, they would be eligible to work. As you are aware, as an H4, they could not work.

I believe it would be to the time of application for I-485.

Understood, but that might also have a bearing on whether the company is prepared to sponsor an immigrant petition.

Please don't take any answers as gospel. Do your own research and use an Immigration Attorney.

swissbrit.CT

The final condition would be the clincher for us, as other two not currently an issue.

OK, that's a further pain.

Yes, I think it's borderline to be honest (but I'm no expert). In the mail trail I've seen so far, local HR thinks that EB1C (which would be an option right now otherwise) is meant only 'for the top 5%'. So might be worth probing here a bit further.

Thanks, that makes things clearer. I had understood that the I130 alien relative appl. had to go with my I465, and then when her date was current, a I485 for her GC. I think also then that we could append an EAD I-765 for my spouse to the whole thing (140 and my 485) to try to get her active more quickly.

Absolutely. I would be able to/have to give them a longer commitment for sure. This would only be possible if my spouse has more options.

Thanks, I won't. I appreciate your brain time. I will continue to study the rules/guidelines. I want to be able to ask the company lawyers the right questions. Your input has very much helped me identify areas requiring further examination. Thanks again.

Jerseygirl

Unless the rules have changed since my husband transferred on a L1a to the US you do not need to have worked 1 year out of 3 years overseas. I also don't recall anyone else who posts on here having to conform to that requirement.

crg

The L-1 must have worked overseas for 1 year of the prior 3 years in the same capacity. That's true. The L-1 is for foreign workers who are in place at the foreign entity to transfer from the foreign entity to the US entity. If they haven't worked for the foreign entity, how could it be a transfer?

sangiano

I certainly wouldn't rely on ANYONE in HR for an opinion on immigration matters! YMMV.

The top 5% comment might be more appropriate to EB1A and EB1B, but EB1C only needs to meet the criteria laid down. That is not to minimize the requirements.

You can find the appropriate regulations 8CFR 204.5(j) Certain multinational executives and managers here or here. This site puts the requirements in a more digestible form. I encourage you to look for others as well.

It might give you a chance to make your own mind up prior to any meetings.

Good luck.

swissbrit.CT

Thanks again for those excellent links. I would definitely meet EB1C - managerial.
I agree about general HR flakiness... that's why I want to be armed with the correct info!

swissbrit.CT

That's the thing, I have worked for more than 1 year of the previous 3 years in the same capacity for the foreign entity. I know what you mean about 'transfer', but the wording of the requirements doesn't actually say explicitly what you and I would assume it should say. Otherwise the 'within the last 3 years' would be extraneous.

swissbrit.CT

They must have changed, the rules are explicit in this regard, as sangiano's quotes directly from the guide illustrate.

sangiano

That was my thought process as well. It was also why I deliberately used the word "might". It is not a very precise definition and lends itself to different interpretations.

It needs checking with an Immigration Attorney to understand what is possible.

Regardless of whether L1(A) is possible, as far as I am aware for EB1C, the one year requirement need not have been served in the year immediately preceding admission to the US.

There is no requirement to be in L1A non-immigrant status to apply for EB1C category - it can and has been achieved from H1B.

crg

It could also refer to a 3 year window during which the person must have worked in the equivalent position within the company.

Maybe they were a manager from 06 to 07 and in sales during 08 and 09.

swissbrit.CT

True that. Could be.

swissbrit.CT

Yes agreed. Just thinking out loud that perhaps agreeing to go direct for a EB1C might be the neatest way for both parties. I would have to work out a three month notice anyway, and as the EB1C is current and doesn't require labor certification, the process might not be that much lengthier than that for a H1B anyway, and would of course be more economical than a H1B and a subsequent I-140.