Can my local consulting agency obtain an L1-visa

Question

I have been employed as a software engineer, for several years now, at local consulting agency in the Netherlands. I am currently performing software development activities for a large multinational that has recently asked me to perform these same activities in the United States for a period less than 90 days.

I have been told I need to obtain an L1-visa, but the multinational is not able to apply for one because I am not in their employment. My agency has therefore been asked to apply for the visa.

Various sources on the Internet tell me however that the sponsoring company, which would be my agency I presume, needs to be a qualifying organization, meaning it either has to be a subsidiary, parent, or affiliate. My agency isn't any of those, nor does it have offices, or even does business, in the United States.

Is there any way it would be possible for my agency to obtain the L1-visa?

Answer 1

Ye Standard Disclaimers: IANAL, Past performance doesn't guarantee future results.

As @littleadv pointed out this would require some creative lawyering in order to get you an L-1B visa. There is very little information and case law regarding independent contractors being able to obtain such a visa since an employer-employee relationship is required but may be difficult to establish.

There are discussions regarding the lack of eligibility for L1 elsewhere like Immihelp.

However, there are multiple instances mentioned by law firms that rules may be changing for independent contractors as far as L-1B is concerned (see Serotte Law and Leon Snaid) but your particular situation might be completely different from the ones they have handled or have mentioned on their pages.

Finally from Chang and Boos:

Employment, De Facto Employment, and Independent Contractors

Working as an independent contractor of the foreign affiliate or subsidiary is generally insufficient for the purposes of satisfying the twelve-month employment requirement. The relationship must be one of employer-employee, although it may be possible to establish this relationship even without formal payroll records. USCIS looks at the degree of control that the company has over the alien to determine if he or she is really a de facto employee or an independent contractor.

So long story short find a immigration lawyer that might be able to look at your particular case and determine if there is a way they can make a case for an L-1B visa for you. But more likely than not the multinational corporation will need to get involved in the process.