• by Santhosh Rao

INTRODUCTION
On November 15, 2018, USCIS Issued a Policy Memorandum, “Satisfying the L-1 1-Year Foreign Employment Requirement’’ to ensure consistent adjudications and basis for calculating time in L-1 Petitions with reference to the one-year of continuous foreign employment requirement. This PM applies, and will be used, to guide determinations by all U.S. Citizenship and Immigration Services (USCIS) employees when adjudicating I-129 petitions for the L-1 classification.

The PM focuses on the following issues:
Requirement of employees to stay employed with foreign employer for one continuous year;

1. Implications of brief trips to US within the said one- year period; and
2. Clarification of the three-year employment period.
   BACKGROUND

L-1 Visa Classification is an Intra Company transfer visa – transfer from a Foreign Company to a related Company in US. The existing relationship between them is of a Parent/branch, parent/subsidiary, joint venture or affiliate. L-1 visas are available for Specialized Knowledge individuals (L-1B) or Managerial or Executive positions (L-1A) for a temporary period, allowing persons to work in US, provided the employee had worked for the foreign entity for one continuous year during the previous three years.

Previously there was no clarity relating to which point in time should be the appropriate reference point for determining the one-year foreign employment requirement or when the preceding three years start, if the employee is already in the U.S. on a different visa and if employees have broken the continuity period. This PM intends to bring uniformity in determining eligibility for the L-1 visa in the context of the one-year requirement and the duration of the preceding three years.

HIGHLIGHTS OF PM
The PM sheds light and offers clarity on the following issues that

1. This PM clarifies 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;
2. The one continuous year of qualifying employment must occur outside the United States i.e. the L-1 beneficiary must be physically outside the United States during the required one continuous year of employment;
3. Any brief trips made to U.S. for business or pleasure purpose will not interrupt the required one continuous year of foreign employment abroad. But the number of days the beneficiary spent in the United States will be subtracted from the time the qualifying foreign entity employed the beneficiary abroad;
4. Time the beneficiary spent working “for” the qualifying organization in the United States results in an adjustment of the three-year look back period for determining whether the beneficiary has met the one-year foreign employment requirement. For this the beneficiary must have been previously employed in US under employment-based nonimmigrant petition or application, such as H-1B or E-2 executive, supervisory, or essential employee. USCIS will in this instance look at the three period before the commencement of US employment say in H-1B visa. For example, if Beneficiary worked for the qualifying organization in the US on H-1B from January 2, 2017 to January 2, 2018 and the US employer files the L-1 petition on January 2, 2018, then the three-year period will be January 1, 2014 to January 1, 2017;
5. Periods of employment with the qualifying organization in the United States as a dependent or student (F-1 student, or an L-2 dependent spouse of an intracompany transferee) do not result in an adjustment of the three-year period for purposes of determining whether the beneficiary has met the one-year continuous foreign employment requirement;
6. Period 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 during which the beneficiary must have been continuously employed in abroad for one year;
7. If a beneficiary takes break in employment or stop working for L-1 sponsor for a period of more than 2 years during the 3 years preceding the L1 filing, then he or she cannot meet the one-year foreign employment requirement. They can again qualify for the L-1 after a new one-year period though.

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