New USCIS L-1 Policy Ushers in Restrictive Interpretation of the One-Year Abroad Requirement

New USCIS L-1 Policy Ushers in Restrictive Interpretation of the One-Year Abroad Requirement

On November 15, 2018, USCIS released a policy memo that clarifies the requirement that the qualifying organization employ the principal L-1 beneficiary abroad for one continuous year out of the three years before the time of petition filing.

USCIS explains that the purpose of the memo is to clarify that:

  1. L-1 beneficiaries must generally be physically outside the United States (U.S.) during the one year of continuous employment; and
  2. the petitioner and the beneficiary must meet all requirements, including the one-year requirement, at the time the L-1 petition is filed.

Noting that the statute is silent as to how beneficiaries who have already been admitted to the U.S. in a different nonimmigrant classification are to be treated, the memo attempts to reconcile questions about what should serve as the appropriate reference point for determining whether the one-year in three-year requirement has been satisfied. USCIS concludes that the correct reference point is the date the petitioner files the initial L-1 petition on the beneficiary’s behalf. USCIS claims, however, that in certain situations, an adjustment of the three-year period is supported by regulation.

According to 8 CFR §214.2(l)(1)(ii)(A), “Periods spent in the United States in lawful status for a branch of the same employer or a parent, affiliate, or subsidiary thereof and brief trips to the United States for business or pleasure shall not be interruptive of the one year of continuous employment abroad but such periods shall not be counted toward fulfillment of that requirement.”v Based on this provision, the memo concludes:

  • Individuals who work “for” the qualifying organization as a principal beneficiary of an employment-based nonimmigrant petition or application (such as an H-1B or E-2) are entitled to an adjustment of the three-year period, starting three years prior to the date the individual entered the United States as the principal of an employment-based nonimmigrant petition or application.
  • Individuals who work in a dependent status (L-2) or student status (F-1) are not entitled to an adjustment of the three-year period, because the purpose of their admission was not to work “for” the qualifying organization. With respect to students, the memo states that this policy would not change even if the qualifying organization financed the F-1 nonimmigrant’s studies.
  • Individuals who work for an unrelated employer or who come to the U.S. and do not engage in work are also not entitled to an adjustment of the three-year period.

Thus, an L-2 spouse or F-1 student is ineligible for L-1 classification, if the last period of qualifying employment with the L-1 organization abroad was more than two years prior to the time of filing the L-1 petition. To illustrate:

  • Mr. G, the president of a multinational company (MNC) wants to explore immigration options for a prospective employee (KG).
  • KG currently holds an F-1 visa, working for the U.S. branch of MNC in Optional Practical Training.
  • Mr. G wants KG to join the U.S. branch of MNC immediately in a managerial capacity.
  • Prior to entering the U.S. in F-1 status in July of 2016, KG had been an executive-level employee, for a period of one-year, at an affiliate of MNC in Singapore.

Prior to the issuance of the new memo, KG would have been eligible for a change of status from F-1 to L-1A, because he had completed one year of employment with MNC in Singapore, within three years of being admitted to the U.S. Now, however, even though KG is working with MNC’s U.S. branch, he is not eligible for a change of status to L-1A, because USCIS does not consider KG to have come to the U.S. to work “for” MNC. In this case, the more than two-year break in employment resulting from his F-1 status, which would fall within the three-year period preceding the filing of the L-1 petition, renders KG ineligible for L-1A status. To work for MNC’s U.S. branch in L-1A status, KG would need to first leave the U.S. and work for an MNC “qualifying organization” abroad for at least one-year.

Source: AILA Doc. No. 19011730 & AILA Doc. No. 18112933.