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USCIS Clarifies L-1 Foreign Employment Requirement

Published: November 30th, 2018

By: Chad I. Rubin

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One of the most unclear issues faced by individuals seeking the L-1 Intracompany Transferee Visa is the one-year foreign employment requirement prior to applying for the L-1 Visa. According to 8 CFR 214.2(l)(1)(ii)(A), intracompany transferee is one “who, within three years preceding the time of his or her application for admission into the United States, has been employed abroad continuously for one year by a [qualifying entity], and who seeks to enter the United States temporarily in order to render his or her services to a branch of the same employer or a parent, affiliate, or subsidiary thereof . . . ” Much confusion has occurred over the years on if a person has met the one year of continuous employment abroad, or if employees have broken the continuity period.

On November 15, 2018, USCIS Issued Policy Memorandum, PM-602-0167, “Satisfying the L-1 1-Year Foreign Employment Requirement,” which provides helpful guidance on this requirement. The memorandum focuses on the following issues:

  • the effect of an employees’ stay working for a foreign company in the U.S.;
  • the effect of brief trips to the United States during the one year period; and
  • the effect of extended U.S. presence not working for the foreign employer.
Adjustment to the 3 Year Period Effective Date

As previously noted, an individual seeking to qualify for the L-1 Visa must possess a minimum of one year of continuous employment for the foreign employer outside of the U.S. However, for a beneficiary employed by the foreign entity in the U.S. in a different non-immigrant status, such as H-1B or E-2, the new policy memorandum has clarified there will be an adjustment to the start date of the three-year period. The time the employee is in the U.S. in this status will not count towards the three-year statutory period, and the new period will be adjusted to start three years before that employee began work in the United States. USCIS provides a helpful example of this: If an L-1 Beneficiary worked in the U.S. in H-1B status for a qualifying organization from January 2, 2017 through January 2, 2018, the pertinent three-year period will be from January 1, 2014 to January 1, 2017. See Policy Memorandum, PM-602-0167 (November 15, 2018). This essentially allows for a four-year period, and extends the potential availability for an employee to qualify for the L-1 Visa. Please note that no adjustment will occur for individuals who are employed by the foreign entity, but are in the United States as a dependent of another visa status, student, working for another company, or unemployed.

Brief Trips to the U.S.

The most helpful explanation in this memorandum directs that brief trips to the U.S. for business or pleasure will not interrupt the required one continuous year of foreign employment abroad. Instead, brief travel abroad will toll the one-year requirement, and the time will begin accruing again upon return to the foreign nationals home county. This guidance is critical for companies with high-level employees who travel often, helping to ensure they can meet this requirement without being grounded in their home country. However, it is important to note that a person who leaves their country for a short period – for example, 30 days – will need to spend an additional 30 days in their home country to make up the period out of the county to meet the one-year foreign employment requirement. This is still helpful guidance, as an individual is not forced to restart their one year clock after brief travel abroad.

These clarifications provided by USCIS are welcome and will surely aid foreign businesses and multinational companies to plan their future for their Executive, Managerial, and Employees with Specialized knowledge.

For assistance with this issue and other immigration-related matters, please contact a member of Dean Mead’s Immigration Team.