USCIS Clarifies L-1 Intracompany Transfer Petitions and Sole Proprietorships, Blanket L Petitions

USCIS has issued new policy guidance on L-1 intracompany transfer petitions addressing sole proprietorships and Blanket L petitions.

There are two highlights:

• USCIS has clarified that sole proprietorships cannot file L petitions on behalf of the owner, i.e., the sole proprietor. USCIS distinguishes sole proprietorships from self-incorporated entities such as a corporations or limited liability companies with a single owner. The distinction is that the corporation or limited liability company – even if there is only a single owner – is nevertheless a distinct entity that can file a petition on behalf of the owner. Of course, the sole proprietor may still file an L petition on behalf of one of its employees. This “change” simply codifies the existing policy.

• Blanket L petitions allow multinational companies that meet certain requirements to transfer employees from overseas to their U.S. offices without the need to file an individual L-1 petition for each employee. A company applying for a first-time Blanket L petition will receive an initial three-year approval. Following the initial three-year approval, a company must apply to extend the Blanket L petition. Once approved, the extension will be valid indefinitely. USCIS has clarified that if a company fails to timely file for an extension of a Blanket L petition, the company does not have to wait three years before asking for an indefinite extension. The three-year wait applies if the extension is denied.

The Department of Homeland Security’s proposed modernization of H-1B requirements would seem to allow entrepreneurs who are company owners to file H petitions in certain circumstances. Those who own a controlling interest could be eligible for an H-1B visa if the owner spends at least 50 percent of their time performing specialty occupation duties, as opposed to ownership or incidental duties. Of course, the H-1B cap limitations may mean that an H-1B visa is not a practical option.

Jackson Lewis attorneys are available to help with visa strategies for sole proprietors and entrepreneurs, including the International Entrepreneur Rule.