Ask Sophie: What are the options for replacing an L-1A visa?

Sophie Alcorn, attorney, author and founder of Alcorn Immigration Law in Silicon Valley, California, is an award-winning Certified Specialist Attorney in Immigration and Nationality Law by the State Bar Board of Legal Specialization. Sophie is passionate about transcending borders, expanding opportunity, and connecting the world by practicing compassionate, visionary, and expert immigration law. Connect with Sophie on LinkedIn and Twitter.

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Dear Sophie,

One of our essential executives has been living and working in the U.S. on an L-1A visa for the past two years. In January, the company sponsored him for an EB-1C green card. 

Given that the EB-1 category is still not current for India, which is where he was born, we’re worried that his L-1A visa will run out before he receives his green card. 

What do you suggest?

— Principled Planner 

Dear Principled,

Thanks for reaching out! I’ve got you covered. Many employers like you who are sponsoring international talent for employment-based green cards to retain them in the United States are hitting obstacles due to outdated numerical caps and unfair country-of-birth limits.

It’s time for Congress to raise the numerical caps and eliminate the country-of-birth caps!

Congress needs to act!

By 2030, an estimated 1.7 million India-born individuals will be waiting for an EB-1 (EB-1A, EB-1B, EB-1C), EB-2 (both EB-2 and EB-2 NIW), or EB-3 category green card, according to a 2020 report by the Congressional Research Service.

As of June 2023, the latest data available, 10,059 individuals who were born in India have had their EB-1 I-140 green card petition approved but are just waiting for a green card number to become available, according to the U.S. Citizenship and Immigration Services (USCIS). At least 47,190 employment-based green cards have been allocated to the EB-1 category.

Given the 7% country cap, only 3,303 EB-1 green cards will be available to individuals who were born in India unless EB-4 and EB-5 green card numbers (about 11,715 green cards are available in each EB-4 and EB-5 category) that are not used are moved to the EB-1 green card category.

Since a cutoff date exists for all countries in the EB-4 category, unused numbers in that category are unlikely. However, there are potentially about 10,000 EB-5 green card numbers that could move to the EB-1 category, and those would be made available to the individuals with the earliest priority dates, which tend to be those born in India.

Now, let me dive into your question.

Maximum stay on an L-1A is seven years

If your executive has been in the United States for two years on an L-1A visa for intracompany transferee executives or managers, then they have five years left, which gives you plenty of time for extensions of L-1 visa for your executive.

The maximum stay in the U.S. on an L-1A is seven years, typically with an initial stay of three years and two 2-year extensions. If the L-1A recipient transferred to the U.S. to open a new office for a company, then an initial stay of one year is granted, followed by a maximum of three 2-year extensions.

Unlike the H-1B specialty occupation visa, which has an option for extending status beyond the maximum six-year stay, the L-1A does not. Once individuals with L-1A status reach the maximum stay of seven years, they must spend a full year outside of the U.S. before they will be eligible for an L-1A again.

The other best visa option

While the H-1B is an option for your executive, if you need an alternative, I recommend focusing your time and effort on sponsoring your executive for an O-1A extraordinary ability visa. While the bar for qualifying for the O-1A is higher than for the H-1B, the O-1A has many advantages.

There’s no minimum education requirement or lottery involved; your company can sponsor your executive for an O-1A at any time of the year, and there is no maximum stay. In other words, there’s no maximum on the number of times the O-1A can be renewed.

Plus, filing for a green card does not disqualify an individual from obtaining the O-1A and does not require maintaining a foreign residence with an O-1A.

Qualifying for the O-1A

For the O-1, unless your executive has won a major international award, such as a Nobel Prize or an Oscar, they will need to meet at least three — but I recommend at least four for a strong petition — of the following criteria:

1. Received two or more nationally or internationally recognized awards for excellence in their field, such as professional association awards or awards for presenting at national or international conferences.
2. Invited to join a group or association in the executive’s field that demands outstanding achievements, such as the Forbes Councils, Supply Chain Leaders in Action or a fellowship in the Institute of Electrical and Electronics Engineers.
3. The individual or their work has been featured in professional or major trade publications or media; generally six or more is good. Blog posts generally do not qualify unless they go viral.
4. Judged the work of others in the executive’s field either as an individual or as part of a panel, such as a hackathon or pitch competition, at least once, but more is better.
5. Made significant contributions to the field, evidence of which can often overlap or tie in with other criteria, such as the individual’s achievements have generated widespread media attention or have been used by others through licensing or patents.
6. Has written five or more articles in the individual’s field of expertise that have been published in scholarly journals, professional or major trade media, major media or even book chapters.
7. Is considered a critical or essential employee for an organization with a distinguished reputation, such as an experienced executive who focuses on important company projects.
8. Commands higher-than-average salaries, which can include equity in a company.

Wishing you the all best! You’ve got this!

— Sophie

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