USCIS Sets New Policy on "One-In-Three" Foreign Employment Requirement for EB1C Beneficiaries in US

 

Introduction: Matter of S-P-, Inc., Adopted Decision 2018-01 (AAO Mar. 19, 2018)

On March 19, 2018, the United States Citizenship and Immigration Services (USCIS) adopted a decision of the Administrative Appeals Office (AAO) as binding policy guidance on all USCIS employees. The decision, now titled Matter of S-P-, Inc., Adopted Decision 2018-01 (AAO Mar. 19, 2018) [PDF version], dealt with the “one-in-three” foreign employment requirement for EB1C immigrant multinational managers or executives where there is an interruption in the qualifying employment of the beneficiary. It clarified “that a beneficiary who worked abroad for a qualifying multinational organization for at least one year, but left its employ for a period of more than two years after being admitted to the United States as a nonimmigrant, does not satisfy the one-in-three foreign employment requirement for immigrant classification as a multinational manager or executive.” In such a case, the beneficiary “would need an additional year of qualifying employment abroad before he or she could once again qualify.”

As an adopted decision, Matter of S-P-, Inc., will be binding on all USCIS employees. Although it is not an immigration precedent decision, its effect will be similar in the context of USCIS adjudications. To learn about other USCIS adopted decisions that remain good law, please see our full index [see index]. To learn about immigration precedent decisions, including AAO decisions that were designated for publication, please see our index on that subject [see index].

In this article, we will examine the factual and procedural history of Matter of S-P-, Inc., the AAO's reasoning and conclusions, and what the decision will mean going forward as binding USCIS policy.

Factual and Procedural History: Pages 1-3

The Petitioner was a manufacturer of tissue paper products. It sought to permanently employ the Beneficiary as a technical director-product development and plant manager under the employment-based first preference category for multinational manager executives or managers (EB1C). The EB1C category allows petitioners to transfer a qualified employee to work in the United States in a managerial or executive capacity.

In the instant case, the Beneficiary had been admitted to the United States as a nonimmigrant prior to the filing of the petition and was maintaining nonimmigrant status inside the United States. In such a case, the regulations found in 8 C.F.R. 204.5(j)(3)(i)(B) require that the petitioning organization have employed the beneficiary abroad for at least one year out of the three years immediately preceding the beneficiary's admission as a nonimmigrant. Please note that in cases where the beneficiary is outside the United States at the time of filing, the petitioner has the burden under 8 C.F.R. 204.5(j)(3)(i)(A) of establishing that it employed the beneficiary abroad for one out of the three years immediately preceding the filing of the petition.

However, the facts in this particular case presented a complicated question. The Beneficiary was in the employ of the petitioner in L1A nonimmigrant status (intracompany manager or executive) at the time of the filing of the petition. However, the Beneficiary had not worked for the Petitioner continuously subsequent to his admission to the United States. The facts are as follows:

The Beneficiary worked in a qualifying capacity for the Petitioner's affiliate in Indonesia for more than one year, until January 2008, prior to being admitted into the United States to work for the Petitioner;
In September 2010, the Beneficiary stopped working for the Petitioner;
The Beneficiary worked for an employer unrelated to the Petitioner from April 2011 to July 2014;
The Beneficiary departed the United States in July 2014;
The Beneficiary returned to the United States in September 2014 to work for the Petitioner in L1A status; and
The Petitioner filed the immigrant visa petition on behalf of the Beneficiary in November 2014.

The Director of the Nebraska Service Center denied the EB1C petition and then affirmed the denial on a motion to reconsider. The Director determined that the petition was not approvable because the Petitioner failed to establish that it had employed the Beneficiary abroad for at least one year during the three years immediately precedent his September 2014 entry to work for the Petitioner. The Director took note of the four-year gap in the Beneficiary's employment with the Petitioner spanning from September 2010 to September 2014. For this reason, the Director declined to consider the three-year period prior to the Beneficiary's initial January 2008 admission.

The Petitioner appealed from the Director's denial to the AAO. On appeal, the Petitioner argued that the Beneficiary satisfied the one-in-three foreign employment requirement by virtue of his employment prior to his initial entry into the United in 2008 to work for the Petitioner. The Petitioner took the position that the applicable regulations do not “preclude a post-entry interruption in employment as long as the Beneficiary is working for the Petitioner as a nonimmigrant at the time of filing the [EB1C] petition.” Thus, under the Petitioner's reading, an interruption in the Beneficiary's employment by the Petitioner subsequent to the Beneficiary's entry should be irrelevant because the Petitioner could rely on its employment abroad of the Beneficiary prior to his initial entry in order to satisfy the one-in-three foreign employment requirement.

Thus, on appeal, the AAO was tasked with determining whether a post-entry interruption in employment required the Beneficiary to satisfy the one-in-three employment requirement anew, or whether the Petitioner could rely on the Beneficiary's employment abroad prior to his initial entry to work for the Petitioner.

On July 27, 2017, the AAO issued a non-precedent decision in the instant case dismissing the Petitioner's appeal. Subsequently, the AAO reopened the decision on its own motion under 8 C.F.R. 103.5(a)(5)(i) in order to make revisions to prepare the decision for adoption by the USCIS. In the next section, we will examine the AAO's reasoning.

Analysis and Conclusions: Pages 4-5

The AAO rejected the Petitioner's reading of 8 C.F.R. 204.5(j)(3)(i)(B) as not disqualifying the Beneficiary from satisfying the one-in-three foreign employment requirement after a change in employers subsequent to the initial entry.

The AAO stated that “[s]tatutes and regulations must be read as a whole, and interpretations should be consistent with the purpose of the [Immigration and Nationality Act (INA)].” The AAO stated that under the Petitioner's preferred reading, “any beneficiary who had worked as a manager or executive for a qualifying entity abroad for one year during the three years preceding entry would remain eligible indefinitely for immigrant multinational classification, as long as he or she was initially admitted to work for the multinational organization and eventually returned to its employ prior to filing the immigrant petition.” The AAO noted that this reading would result in “a more lenient standard for a beneficiary already in the United States than for one seeking admission from abroad,” and it declined to adopt such a standard.

Under section 203(b)(1)(C) of the INA, which codifies the EB1C preference, a beneficiary must have been employed by the petitioning organization in a managerial or executive capacity abroad for one out of the three years “preceding the time of the alien's application for classification and admission into the United States…” The AAO noted that the statute itself does not directly address situations in which the beneficiary is already employed by the petitioner in the United States as a nonimmigrant. As we noted, the USCIS addressed the situation for EB1C beneficiaries who are already in the United States in the regulations at 8 C.F.R. 204.5(j)(3)(i)(B). In the Federal Register (FR) Notice finalizing the rule, published at 56 FR 30,703, 30,705 (Jul. 5, 1991), the USCIS construed the statute as not precluding “nonimmigrant managers or executives who have already been transferred to the United States” (L1A nonimmigrants) from being eligible to have an immigrant visa petition approved when filed by the same organization. It was for this reason that the USCIS allowed an EB1C petitioner for an L1A nonimmigrant to rely on the beneficiary's employment abroad prior to entering as a nonimmigrant. Absent this regulation, a beneficiary who had been employed in the United States by the petitioner for more than two years would be ineligible for EB1C classification without again working for a qualifying organization abroad.

However, the AAO noted that “both the statute and the regulations focus on the continuity of the beneficiary's employment with the same multinational organization.” In fact, the AAO concluded that the purpose of the L1A and EB1C classifications themselves are to “facilitate the international transfer of multinational business' key personnel.”

The AAO explained that in the case of a beneficiary outside of the United States, any interruption of employment with the petitioner for more than two years in the three years immediately preceding the filing of the petition would render the beneficiary ineligible for EB1C classification under both the INA and the implementing regulations. In this case, the beneficiary would need further qualifying employment abroad to satisfy the one-in-three foreign employment requirement.

Noting the general rule, he AAO construed the statute and regulations to apply the same rule to beneficiaries working for the petitioner in the United States as is applicable to beneficiaries situated abroad. The AAO stated its new rule as follows: “A beneficiary who worked as a manager or executive for a qualifying multinational organization for at least one year, but who then left the organization for a period of more than two years, is ineligible for [EB1C] classification.” In order for such an individual who is in the United States to again become eligible, he or she would “need an additional year of qualifying employment abroad…”

Interestingly, the AAO accepted the Petitioner's reading of the statute and regulations to the extent that a break in employment for the petitioner in the United States does not automatically disqualify a beneficiary. The AAO concluded, however, that any break in employment for the petitioner that is longer than two years “will interrupt a beneficiary's continuity of employment with the petitioner's multinational organization.” The AAO provided a non-exhaustive list of what may constitute a “break” in employment:

Intervening employment with a non-qualifying U.S. employer; or
Periods of stay in nonimmigrant status without work authorization.

Regarding the petition at issue in Matter of S-P-, Inc., the AAO determined that the Beneficiary's continuity of employment for the Petitioner was broken due to the four-year break in employment, which exceeded the two-year limit. Because of the four-year break, the AAO concluded that the Petitioner could “no longer establish eligibility [for EB1C classification] based on the three-year period of employment that immediately preceded [the Beneficiary's] admission to the United States. Accordingly, the Beneficiary would have been required to meet the one-in-three foreign employment requirement subsequent to his 2014 admission to work for the Petitioner. Because the Beneficiary did not satisfy this requirement, the AAO dismissed the Petitioner's appeal.

Interestingly, in a footnote, the AAO noted that the evidence in the record suggested that the USCIS may have erred in approving the Beneficiary's 2014 L1A petition on the grounds that the Beneficiary had not been employed abroad by a qualifying organization within three years preceding the filing of the L1A petition. However, that question was not at issue in the instant case.

Conclusion

With the adoption of Matter of S-P-, Inc., the USCIS will apply the same rule to EB1C beneficiaries who are working in the United States as that the rule that applies to EB1C beneficiaries abroad. In order for an EB1C beneficiary in the United States to rely on his or her employment for a qualifying organization abroad, he or she cannot have left the qualifying organization (relating to the petitioner) for more than two years. If the beneficiary leaves the qualifying organization in the United States for more than two years subsequent to admission, he or she would have to meet the one-in-three foreign employment requirement by working abroad again.

When filing an immigrant visa petition, an employer should work closely with an experienced immigration attorney for case-specific guidance. Furthermore, employers and beneficiaries should consult with an attorney prior to filing a petition for guidance on the applicable requirements. This is especially important in the context of L1 nonimmigrant petitions and EB1C immigrant petitions, both of which have significant evidentiary requirements regarding both the petitioning organization and the beneficiary's employment and qualifications.