The L-1 intracompany transferee visa category applies to foreign nationals who have been employed abroad in executive, managerial or specialized knowledge capacities for at least one continuous year with a commonly-owned foreign company, and who are in the United States to continue rendering services to the same or a related U.S. employer. L-1 executives or managers (L-1A) may remain in the United States for a maximum of 7 years. Specialized knowledge (L-1B) employees may remain for a maximum of 5 years. L-1 transferees are not accorded exemptions from the five and seven year maximums. If an L-1B transferee is being sponsored for Lawful Permanent Residence (LPR) and will qualify for LPR status in one of the immigrant visa preference categories that is oversubscribed (in other words, is currently backlogged), employers should seriously consider filing an H-1B petition for those L-1B transferees who might be eligible for H-1B specialty worker classification.

H-1B specialty workers are generally limited to 6 years of stay in the United States. However, the law allows H-1B employees to extend their H-1B status beyond the 6th year in limited circumstances. These circumstances include situations in which (i) an employer has established a priority date (based on a PERM labor certification or Immigrant Petition filing more than one year before the arrival of the six year H-1B maximum or (ii) an employer has an approved I-140 Immigrant Petition but the beneficiary's priority date is not current. By changing the status of L-1B transferees to H-1B, an employer opens the door to H-1B extensions beyond the 6th year, which can become critical in circumstances where the employer's permanent residence case is stuck in the immigration quota system employment-based backlog (such as EB3 beneficiaries and some EB2 beneficiaries from India and China).

To qualify for the H-1B category, the position offered must be a specialty in which a bachelor's degree or its equivalent is normally the minimum requirement for the position and the foreign national holds a bachelor's level degree or its equivalent in the specialty defined by the position (this threshold can be met in some cases through a combination of education and work experience.) It is important to note here that L-1 and H-1B time count against one another, so if an L-1 employee spends 3 years in L-1 status and 1 year in H-1B status, he or she has effectively "used up" 4 years of eligible H-1B time.

Therefore, if an employer has an employee in L-1B status who has been in the United States for two or three years or longer and the employee will likely wind up in the EB3 LPR category, it is important to consider filing an H-1B petition on April 1, 2008. This may help protect the employee from reaching the five year L-1B maximum and having to leave the U.S.