USCIS has released a policy memorandum clarifying the “one continuous year out of three years” L-1 requirement refers to the time before the individual’s filing.

Eligibility for L-1 status requires the following:

  • The U.S. company has a parent, subsidiary, affiliate, or branch abroad (“qualifying organization”)
  • The U.S. company is or will be doing business in the U.S. and at least one other country through a qualifying organization during the employment of the individual in L-1 status
  • The employee is seeking admission to provide service in an executive, managerial, or specialized knowledge capacity
  • The employee has worked for a qualifying organization abroad for one continuous year within the three years immediately preceding his or her admission to the U.S. in an executive, managerial, or specialized knowledge capacity

This clears up a conflict between the statute and regulations on whether the one-year requirement must be met before seeking admission to the U.S. or before filing the L-1 petition. The statute states, “an alien who, within 3 years preceding the time of his application for admission to the United States, has been employed continuously for one year . . . .” (INA Sec. 101(a)(15)(L)) This is echoed in part of the regulations at 8 CFR Sec. 214.2(l)(1)(ii)(A). However, both 8 CFR 214.2(l)(3)(iii) and 8 CFR 214.2(l)(3)(v)(B) state that the employment abroad must have occurred prior to the filing of the petition. Because of this, there has been inconsistency in approvals of petitions where the one year of employment abroad was met prior to admission to the U.S., but not necessarily prior to the filing of the L-1 petition.

The new policy also makes clear that any time spent in the U.S., while it will not break the continuous employment period, will be subtracted from the one-year requirement. This is a change in policy from precedent for the one year being met with 5 months of training in the U.S. and 7 months of employment abroad. Matter of Continental Grain Co., 14 I&N Dec. 140 (DD 1972).

The new policy memo makes it more difficult to accumulate that one year of continuous employment if the individual has been in the U.S. working for a different company before applying for an L visa or was in a status that was not sponsored by the U.S. petitioner.

The policy memo states:

  1. The usual reference point for determining the one year in three years requirement is the date the petitioner files the initial L-1 petition, not the date of admission.
  2. Time spent in the U.S. working for a qualifying organization in another employment-based nonimmigrant status results in an adjustment of the reference point back to initial date of entry in the other status. For example, if the person worked as an E-2 for the petitioner or a qualifying organization in the U.S. and filed the I-129 L-1 petition, the 3-year period would be the period prior to admission in E-2. Time spent working in the U.S. for an unassociated company does not adjust the reference point. Periods spent in the U.S. working for the qualifying organization but as a dependent or student or any status that is not sponsored by a qualifying organization does not result in an adjustment of the reference point. For example, if the person and her spouse worked for the organization abroad and the spouse was transferred as an E-2 but the person worked as an E-2 dependent, the person working as the E-2 would have the time period adjusted for a future L-1 petition, but the E-2 dependent would not.
  3. If the beneficiary takes a break in employment with, or stops working for, the qualifying organization for more than two years during the three years preceding the petition filing, then he or she cannot meet the one-year requirement. This would bar individuals who have worked for the company within the past three years – just not for the past two years.
  4. Although the continuity requirement is not broken by brief trips to the U.S. for business or pleasure, the one-year foreign employment requirement is satisfied only by the time a beneficiary spends physically outside of the U.S. working full-time. Individuals considering applying for L-1 status must track all time spent in the U.S.

USCIS has noted that these changes will ensure a real continuity of employment for individuals who are being transferred to the U.S. in L-1 status. These changes also will decrease the number of workers who may qualify as L-1 transferees.

If you have questions about how this new policy might affect your employees or your company’s strategies, please reach out to your Jackson Lewis attorney.