USCIS Issues Memo Clarifying Definition of ‘one continuous year’ for L-1 Petitions


The U.S. Citizenship and Immigration Services (USCIS) issued a Policy Memorandum dated November 29, 2018 clarifying the “one-year foreign employment requirement” for a qualifying U.S. organization that wishes to file for L-1 intracompany transfer petition to transfer an executive or manager (L-1) or a specialized knowledge worker (L-1B) from a qualifying foreign office to its related office in the U.S.

Specifically, this Policy Memorandum explains that:

  • The one continuous year of qualifying employment must occur outside the United States:
  • The L-1 beneficiary must be physically outside the United States during the required one continuous year of employment, 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

  • Brief trips to the United States for business or pleasure do not interrupt the one continuous year:
  • If the L-1 beneficiary has made brief trips to the U.S., the number of days in the U.S. will be counted against the one year and the individual must accrue that additional number of days beyond the one year of employment.

  • Working in the U.S. for the same company under another visa status results in an adjustment of the three-year period:
  • A leeway has been built in for employees already working for the sponsoring company on another non-immigrant visa status such as H-1B, such employees may be able to adjust the three-year requirement. For example, if the beneficiary worked in the U.S. for a qualifying organization in H-1B status from August 1, 2017 through August 1, 2018 and that same organization filed the L-1 petition on August 1, 2018, the three-year period would run from August 1, 2014 to August 1, 2017.

  • Employment while in dependent or student statusdo not result in an adjustment of the three-year period:
  • USCIS explains that since L-2 or F-1 were not admitted to the U.S. for purposes of working for the qualifying organization, time spent by them in dependent status will not be adjusted. This remains the case even if the qualifying organization financed the F-1 student’s studies.

  • Periods of time in the United States not working or working for an unrelated employer do not result in an adjustment of the three-year period:

  • Time spent working in the U.S. for an unrelated employer will interrupt the continuous one-year period, and the three-year period will not be adjusted. A break in employment of more than two years during the three years immediately preceding the filing date will disqualify the individual from meeting the one-year foreign employment requirement. USCIS has clarified that the three-year period will be counted back from the date of filing of the initial L-1 application, not the date of admission.

The above clarifications are intended to ensure consistent adjudication of L-1 petitions by providing a standard basis for calculating time for the one-year foreign employment requirement.

Amit Solanki, Immigration Executive

 

Keywords: USCIS, H-1B, L-1, Adjustment of Status, Policy



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