Introduction

On November 15, 2018, the United States Citizenship and Immigration Services (USCIS) published a new policy memorandum titled “Satisfying the L-1 1-Year Foreign Employment Requirement; Revisions to Chapter 32.3 of the Adjudicator’s Field Manual (AFM)” [PDF version of PM-602-0167].

PM-602-0167 provides clarifies certain rules for L1 petitions. First, it explains that “the L-1 beneficiary must be physically outside the United States during the 1 continuous year of employment (although in certain cases brief trips to the United States do not interrupt, or break, the 1 continuous year).” Second, it explains that “the petitioner and beneficiary must meet al requirements, including the 1 year of foreign employment, at the time the petitioner files the initial L1 petition.”

In this article, we will examine the clarifications in PM-602-0167. To learn more about L1 visas and other work visas, please see our website’s growing collection of articles on the subject [see category].

Statutory and Regulatory Background

Section 101(a)(15)(L) of the Immigration and Nationality Act (INA) states that an otherwise eligible foreign national may be classifiable as an L1 nonimmigrant intracompany transferee if “within 3 years preceding the time of his application for admission into the United States, [the foreign national] has been employed continuously for one year by a firm or corporation or other legal entity or affiliate or subsidiary thereof and … seeks to enter the United States temporarily in order to continue to render his services to the same employer or a subsidiary or affiliate thereof in a capacity that is managerial, executive, or involves specialized knowledge…” The instant Policy Memorandum focuses on the 1 year of continuous employment in the 3 years immediately preceding the petition for an entity related in a qualifying way to the petitioning entity.

Implementing regulations at 8 C.F.R. 214.2(l)(1)(ii)(A) echoes the statutory language, defining an L1 nonimmigrant intracompany transferee as a foreign national “who, within three years preceding the time of his or her application for admission into the United States, has been employed abroad continuously for one year by a [qualifying entity], and who seeks to enter the United States temporarily in order to render his or her services to a branch of the same employer or a parent, affiliate, or subsidiary thereof.” The regulation provides additional guidance on cases where the foreign national spends part of the 1-year period in lawful immigration status working for a branch of the same employer or a parent, affiliate, or subsidiary thereof, and well as cases where the foreign national takes brief trips to the United States for business or pleasure [see category]. The regulation states that such employment or trips “shall not be interruptive of the one year of continuous employment abroad but … shall not be counted toward fulfillment of that requirement.”

Question Addressed by the Policy Memorandum

The Policy Memorandum explains that both INA 101(a)(15)(L) and 8 C.F.R. 214.2(l)(1)(ii)(A) require that an L1 beneficiary have worked for one continuous year at a qualifying entity abroad in the 3-year period immediately preceding the filing of the petition.

The Policy Memorandum notes that the INA is “silent about those beneficiaries who have already been admitted to the United States in a different classification.” The regulations at 8 C.F.R. 214.2(l)(3)(iii), however, are worded slightly differently, stating that the one year of foreign employment must have occurred “within the three years preceding the filing of the petition.”

The USCIS noted that the different language of the INA and CFR left open the question of how the three-year period is counted in cases where the beneficiary of the L1 petition was admitted into the United States in a different nonimmigrant status and subsequently requested a change of status to L1.

As we will see, the USCIS concluded that the statute and regulations “do not limit the ability of companies to employ otherwise eligible personnel as L-1 nonimmigrants merely because such persons may have been initially admitted in a different nonimmigrant classification.” For this reason, the USCIS clarified “that the proper reference point for determining the one-year foreign employment requirement is the date the petitioner files the initial L-1 petition on the beneficiary’s behalf, the starting point in the alien’s application for admission in L-1 status.” Below, we will discuss the USCIS rules for different L1 petition scenarios.

Overview of the One Continuous Year of Qualifying Employment Outside of the United States Requirement

In all cases, an L1 beneficiary must have been employed for one continuous year abroad with a qualifying organization in the three years immediately preceding the filing of the initial L1 petition. Time spent by the L1 beneficiary in the United States, even if it was spent working for the petitioner in lawful nonimmigrant status, does not count toward the one-in-three requirement. It does not apply “even if the qualifying foreign entity paid the beneficiary and continued to employ the beneficiary while he or she was in the United States.” Finally, the petitioner has the burden of establishing that the beneficiary worked for the one-year period in a managerial, executive, or specialized knowledge capacity.

Brief Trips to United States For Business or Pleasure Do Not Interrupt One Continuous Year

Brief trips to the United States for business (B1) or pleasure (B2) during the period in which the L1 beneficiary is employed abroad with a qualifying organization do not interrupt the one continuous year. Instead, the USCIS will toll the time spent by the beneficiary in the United States in B1 or B2 status. In other words, the time spent by the beneficiary as a B1 or B2 visitor would be subtracted from the time the beneficiary was employed abroad with the qualifying organization. For example, if a beneficiary’s qualifying foreign employment began on January 1, 2016, and he or she spent 60 days in the United States in B1 or B2 status between January 1, 2016 and January 1, 2017, the beneficiary would need to accrue an additional 60 days of employment with the foreign employer abroad after January 1, 2017 to meet the one-in-three requirement.

Treatment of Time Spent Working “For” Qualifying Organization in the United States Results in Adjustment of Three-Year Period

Any time spent by the beneficiary working “for” the qualifying organization (i.e., as the principal beneficiary of an employment-based petition) in the United States will not be counted toward the one year of continuous employment abroad requirement. However, under 8 C.F.R. 214.2(l)(1)(ii)(A), it adjusts the three-year period. To use an example, if an L1 beneficiary had been admitted in H1B or E2 status to work for the qualifying organization in the United States on January 2, 2017, and worked for the organization in such status until an L1 petition was filed on his or her behalf on January 2, 2018, the three-year period in which the petitioner must have accrued one continuous year of employment abroad with a qualifying organization would be from January 1, 2014 to January 1, 2017.

Treatment of Time Spent in United States as a Dependent or Student Employed by Qualifying Organization Does Not Result in Adjustment of Three-Year Period

Any time spent by the beneficiary working for the qualifying organization in L2 dependent status would not result in the adjustment of the three-year period. This is because the beneficiary would have been admitted in L2 status to join the principal L1, not to work for the qualifying organization. Furthermore, a beneficiary who had been admitted in F1 student status and then worked for the qualifying organization for his or her optional practical training (OPT) would not have his or her three-year period adjusted as a result of that employment. Again, this is because an F1 student is not admitted for the purpose of working for the qualifying organization, unlike the H1B and E2 scenarios discussed above.

Periods of Time Spent in the United States Not Working or Working For an Unrelated Employer Do Not Result in the Adjustment of the Three-Year Period

Periods of time spent in the United States either not employed by the qualifying organization or not employed at all are deemed to be interruptive of the three-year period, with the exception of brief visits for business or pleasure which merely toll the continuous one year requirement. The pertinent consideration for USCIS officers is the date on which the petitioner filed the initial L1 petition.

The USCIS adds that a beneficiary who has not been employed by a qualifying organization for more than two years in the three years immediately preceding the filing of the L1 petition would be ineligible for L1 classification. He or she would need to satisfy the one year of continuous employment abroad with a qualifying organization in a qualifying capacity in order to become eligible for L1 classification.

Guidance for USCIS Officers

USCIS officers are instructed to undertake the following steps in determining whether a beneficiary meets the one-in-three continuous foreign employment requirement:

1. Determine the dates on which the beneficiary worked for the qualifying organization abroad.
2. Determine the length of any breaks in the beneficiary’s qualifying employment during the three years immediately preceding the filing of the petition. Adjust the three year period if the beneficiary lawfully worked for the qualifying organization in the United States as the principal beneficiary of an employment-based nonimmigrant petition or application.
3. Subtract the length of breaks identified in step 2 from the applicable three-year period. The petitioner meets the requirement if he or she is left with a continuous one-year period of employment with a qualifying organization abroad.

Conclusion

The new policy memorandum provides important clarifications for meeting the one-in-three continuous foreign employment requirement for L1 classification. In general, petitioners and beneficiaries should consult with an experienced immigration attorney in the area of employment immigration for case-specific guidance on L1 petitions and other types of nonimmigrant and immigrant employment petitions. An experienced attorney will be able to assess each individual case and determine which immigration options are available for meeting the needs of the parties involved.