L Visa for a New Office – The importance of the US office’s size and location

By: Fabiana Guerra, Chris Costa and Louanni Ribeiro

The L visa is an employment visa whose purpose is to allow the transfer of employees (specialist professionals, managers and executives) from a foreign company (for example Brazilian) to its affiliate in the USA, including when this affiliate was established less than a year ago or is “doing business” (employees, sales, etc.) in the US for less than one year (New Office).

In order to apply for this visa, it is necessary to demonstrate that the newly established American company will be operational and viable through the presentation of a 5-year business plan.

One of the aspects that must be adequately evidenced in the New Office L visa application process is the size and location of the physical office in the USA, referred to in the legislation as its “Physical Premises”.

In accordance with immigration regulations for L visas, New Offices must accommodate all current and projected employees for the first year of operations – regardless of their physical location or whether they will be working remotely or hybrid, noting that the L visa holder cannot be 100% remote. For an L visa, all employees of a New Office are expected to report to the office at least occasionally and preferably at the same time. In addition, the physical facilities are considered to reflect the US company’s commitment to its development in the US in New Office cases.

Thus, the lease agreement for the physical office in the USA must be presented when submitting the petition of merit and must necessarily fulfill the requirements below:

  1. Type of lease: commercial, with a formal, written and signed contract with a term of at least one year. Offices in a residential building or inside the transferred employee’s residence are not accepted. The office must be for the exclusive use of the company, so co-working contracts in which the use of spaces is on demand are not accepted, but co-working contracts with space reserved for the company are accepted. Before submitting the L-1A visa petition, it is necessary to have the contract duly signed;
  2. Size of the office: it must have adequate physical space to receive the transferred employee and the employees who will be hired in the USA within the next year. A physical space of at least 100 square feet per employee is considered reasonable. Note that co-working spaces often rent smaller offices that accommodate more people than normal business practice;
  3. Minimum comfort for employees: the office must have a minimum of comfort for its employees, such as tables and chairs suitable for work, bathrooms in perfect conditions of use, meeting room and pantry, since in the USA it is quite common for lunch to be eaten at the office, but not at the workstations.
  4. Location of the office: different from the address of the legal entity’s headquarters, which may even be in another state, the location of the physical office must be aligned with the company’s objective and must reflect the strategy presented in the business plan.

Of course, Physical Premises is just one of the visa requirements and evidence is always analyzed in the context of the application as a whole, so talk to your immigration attorney to make sure that the office you intend to rent to the US company in a L visa case for a New Office meets what is expected for your specific case.

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