USCIS Clarifies the L-1 One-Year Foreign Employment Requirement

On November 15, 2018, USCIS published a policy memorandum (PM) clarifying the requirement that a qualifying organization employ a principal L-1 beneficiary abroad for one continuous year out of the three years before the time of petition filing ("one-year foreign employment requirement"). This clarification is intended to ensure consistent adjudication of L-1 petitions by providing a standard basis for calculating time for the one-year foreign employment requirement.

The L-1 nonimmigrant classification allows a U.S. employer to transfer an executive or manager (L-1A) or an employee with specialized knowledge (L-1B) from one of its qualifying foreign offices to one of its offices in the United States. This classification allows a foreign company that does not yet have a qualifying U.S. office to send an executive or manager, or specialized knowledge employee, to the United States to establish one.

Specifically, this PM explains that:

  • The L-1 beneficiary must be physically outside the United States during the required one continuous year of employment, except for brief trips to the United States for business or pleasure; and
  • The petitioner and the beneficiary must meet all requirements, including the one year of foreign employment, at the time the petitioner files the initial L-1 petition.

Except as noted in the PM, the one year of foreign employment must occur within the three-year period preceding the date the L-1 petition is filed. USCIS will calculate the three-year period during which the beneficiary must meet the one-year foreign employment requirement. The PM also clarifies what time will be taken into consideration in determining when the three-year period begins.

INA section 101(a)(15)(L) and 8 CFR 214.2(l)(1)(ii)(A) require that the beneficiary work abroad for one continuous year within the three years preceding the "application for admission into the United States." The statute is silent about those beneficiaries who have already been admitted to the United States in a different classification. However, 8 CFR 214.2(l)(3)(iii) uses a different reference point and states that the one year of foreign employment must have occurred "within the three years preceding the filing of the petition."3 The difference in phrasing has led to questions about which point in time should be the appropriate reference point in determining whether the one-year foreign employment requirement has been satisfied. This has been particularly problematic when individuals were admitted into the United States in a status other than L-1 (for example, as an H-1B specialty occupation worker, an F-1 student, or an L-2 dependent spouse of an intracompany transferee) and request a change of status to the L-1 classification.

INA section 101(a)(15)(L) and the similar language of 8 CFR 214.2(l)(1)(ii)(A) 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. However, the requirement that an L-1 beneficiary have worked abroad for at least one continuous year in the preceding three years ensures the continuity of a beneficiary's lawful employment with the same international qualifying organization, consistent with the purpose of the intracompany transferee visa classification. Therefore, USCIS is clarifying 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.

The one-year foreign employment requirement is only satisfied by the time a beneficiary spends physically outside the United States working full-time for the petitioner or a qualifying organization. A petitioner cannot use any time that the beneficiary spent in the United States to meet the one-year foreign employment requirement, even if the qualifying foreign entity paid the beneficiary and continued to employ the beneficiary while he or she was in the United States. Furthermore, the one continuous year of foreign employment must be qualifying; that is, the petitioner must demonstrate that the beneficiary worked abroad during that time period in a managerial, executive, or specialized knowledge capacity.

In support of the Buy American and Hire American Executive Order, USCIS is reviewing all employment-based immigration programs to eliminate fraud and ensure consistent adjudications. USCIS has not previously provided specific policy guidance with respect to the conditions by which the three-year clock may be stopped for purposes of determining whether the one-year foreign employment requirement for L-1 beneficiaries has been met. This PM improves the process for adjudicating the L-1 nonimmigrant benefit by clarifying the calculation guidelines to ensure they are applied consistently to all L-1 petitions.

Interim and final policy memoranda are official USCIS policy documents and go into effect on the date the memos are issued.

We at Litwin & Smith represent employers in most of the various industries represented around the Bay Area and across the U.S. We are a boutique immigration law firm representing large and small business clients. Our firm is a nationally recognized premiere immigration firm. We routinely provide immigration assistance to foreign nationals from all over the world.

We are very successful in preparing and obtaining nonimmigrant L-1 visas for investors, employers and their employees as well as subsequent immigrant visas and green cards for investors and employees. We prepare hundreds of employment based petitions each year. We offer excellent service at a competitive price. Of course, price isn't everything. Timeliness, responsiveness, professionalism, and expertise are all part of providing an employer quality guidance and representation. We are known for our availability, responsiveness, timeliness, professionalism and expertise.

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