USCIS Issues Memorandum Clarifying the One-Year Foreign Employment Requirement of the L-1 Visa

U.S. Immigration and Citizenship Services (USCIS) recently issued a policy memorandum, effective immediately, providing clarification on how it will calculate qualifying employment abroad when adjudicating a foreign national’s eligibility for an L-1 nonimmigrant visa petition. This is the first time USCIS has provided a comprehensive explanation, including examples, on how a foreign national can meet the One-Year Employment Requirement of the L-1 Visa.

The L-1 visa enables a U.S. employer to transfer an executive or manager from one of its affiliated foreign offices to one of its offices in the U.S.  This visa also allows a foreign company to send an executive or manager to the U.S. with the purpose of establishing a new affiliated U.S. office. In order for a foreign national to be classified as an L-1 nonimmigrant, one of the key requirements is that, within the 3 years before the time of application for admission, the foreign national must have been employed by the qualifying organization abroad for 1 continuous year ("One-Year Rule").  Previously, USCIS has not provided comprehensive guidance on how the One-Year Rule is defined for the purposes of determining whether a foreign national has met this requirement for L-1 nonimmigrant status. In the past, USCIS adjudicated L-1 cases based on varying interpretations.

With the newly issued policy memorandum, an L-1 applicant’s eligibility under the One-Year Rule must be evaluated with the following in mind:

Physically Outside the U.S.:  
The L-1 beneficiary must be physically outside the U.S. working full-time during the required one continuous year of employment.  Any time the L-1 beneficiary spent in the U.S. cannot be included in the one-year calculation, even if L-1 beneficiary's foreign employer paid for the U.S. trips within the scope of the foreign employment;

Brief Trips to the U.S. for Business or Pleasure Will Not Interrupt the One Continuous Year:  
The new memorandum specifically provides that brief trips to the U.S. for business or pleasure in B-1/B-2 status do not interrupt the one continuous year and will not count against the one-year calculation.  However, the L-1 beneficiary's time during the brief trips in the U.S. will not count towards the one-year calculation resulting in the subtraction of the number of days the L-1 beneficiary spent in the U.S. from the time of employment abroad.  Therefore, the L-1 beneficiary must add the time that needed to continue to be spent in qualifying the One-Year Rule. Also, the memo did not define "brief". According to its provided example, we know for sure that "brief trips to the United States one year for a total of 60 days" will be considered brief trips, and thus, will not interrupt the one continuous year. In addition, the memo seems to only identify trips in B-1/B-2 status. Travel to the U.S. under other nonimmigrant categories working or not working might interrupt the one continuous year foreign employment requirement.  If you are looking to apply for an L-1 visa and must travel to the U.S., please contact an immigration professional for advice.

Applicant Already Working In the U.S. For the Petitioning U.S. Employer Under As  Principal Beneficiary of Employment-Based Nonimmigrant Status:
As previously discussed, time spent in the U.S. will not count toward the one-year calculation. Additionally, the starting point to calculate the three-year period will be adjusted.  In this situation, USCIS will look to the date upon which the applicant was initially admitted to work for the petitioning U.S. employer under another employment-based nonimmigrant status.  For example, you have been working the U.S. in valid H-1B status for a qualifying organization from 01/02/2018 to 0102/2019, and the organization filed for you an L-1 petition on 01/02/2019, the three-year period required by the L-1 petition at issue will be from 01/01/2015 to 01/01/2018.

What If I Was Not Working For the Petitioning U.S. Employer As Principal Beneficiary of Employment-Based Nonimmigrant Status, such as L-2 or F-1 OPT?  
If the Applicant has been working for the petitioning U.S. employer as a dependent or student, the three-year period will not be adjusted, meaning that, USCIS will look to the date upon which the initial L petition was filed.

Unemployment or Employment Unrelated to the Petitioning Employer:
Time spent in the U.S. without working (except for brief visits for business or pleasure in B-1/B-2 status), or while working for an unrelated employer will interrupt the one continuous year foreign employment requirement.  However, the three-year period will not be adjusted. The relevant point in time to determine whether the applicant meets the One Year Rule is the date upon which the petitioner filed the initial L-1 petition.

What does this mean for you?
If you are looking to apply for an L-1 visa, you must carefully calculate the time you spent in the U.S. and abroad before applying as the new memo may delay L-1 eligibility for some applicant.

If you are already in the U.S., you should confirm the amount of time you have spent in the U.S. and whether your current status results in an adjustment of calculating the three-period.

As an employer looking to transfer an executive or manager to the U.S. under L-1, you must keep track of the executive or manager’s trips to the U.S. to ensure it is brief and in the right categories or status.

The policy change is effective immediately. If you or your organization has questions about the effects of the new policy memo, please contact the immigration profession at Troglia Kaplan, LLC.  This article is for informational purposes only.