U.S. Citizenship and Immigration Services issued a policy memo Thursday that sets out how adjudicators will calculate the eligibility requirement that L-1 intracompany transferee applicants must have been employed for one continuous year abroad within the preceding three years.

The memo clarifies that the three-year period will be counted back from the date of the initial L-1 application, not the date of admission, and that the individual must have been physically outside the U.S. during the continuous one-year period. It also explains circumstances under which the three-year period may be adjusted.

  • Physical location. The employee must have been physically outside the U.S. during the one year of continuous full-time employment, regardless of payroll or employer. The employee must have been working in a managerial, executive or specialized knowledge role.
  • Brief trips to the U.S. If the employee made brief trips to the U.S. during the one-year period, the one-year clock does not need to restart, but 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.
  • Work in the U.S. in another visa status for the same company. Time that an employee spent working for the qualifying organization, such as in H-1B status, does not count toward the one-year tenure requirement, but does result in an adjustment of the three-year period. For example, if an individual worked in the U.S. for a qualifying organization in H-1B status from Jan. 2, 2017, through Jan. 2, 2018, and that same petitioner filed the L-1 petition on Jan. 2, 2018, the three-year period would run from Jan. 1, 2014 to Jan. 1, 2017.
  • Employment while in dependent or student status. The three-year period will not be adjusted for time that an individual in dependent status, such as L-2, or student status, such as F-1, spent working in the U.S. because they were not admitted to the U.S. for purposes of working for the qualifying organization. This remains the case even if the qualifying organization financed the F-1 student’s studies.
  • Working for an unrelated employer. 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 being able to meet the one-year foreign employment requirement.

BAL Analysis: The policy memo clarifies definitions that previously resulted in inconsistent adjudications. Employers and individuals will need to ensure that they closely track an employee’s trips to the U.S. and other time spent in the U.S. during the relevant three-year period, as they may now affect the timing and eligibility for their L-1 petitions. This policy memorandum is now in effect, and will apply to all L-1 petitions filed with USCIS.

This alert has been provided by the BAL U.S. Practice group. For additional information, please contact berryapplemanleiden@bal.com.

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