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Erickson in the News: Calculating 1-Year Employment Requirement For L-1 Visas

December 20, 2018

U.S. Citizenship and Immigration Services recently issued a policy memorandum[1] to clarify the one-year foreign employment requirement for L-1 visa holders. The clarification impacts the time frame for which the employment abroad must be completed. The memorandum is a measure to ensure petitions are adjudicated consistently by providing additional guidance to USCIS personnel tasked to adjudicate the L visa petition.

An Introduction to the L-1 Visa

The L-1 visa is a nonimmigrant visa that allows the temporary intracompany transfer of a foreign professional into the U.S. for work authorization. In order to qualify for this visa, the individual must fall within the managerial, executive or specialized knowledge category within his or her company. Specifically, there are two types of L-1 visas. The L-1A visa is designated for managers and executives, and the L-1B visa is designated for employees with specialized knowledge. A critical requirement for this visa is that the individual must have at least one full year of continuous employment outside of the U.S. within the preceding three years from the date of filing the initial petition. Furthermore, the foreign worker must be transferred to an office of the same employer, its parent, branch, subsidiary or affiliate.

Although this visa is classified as nonimmigrant, the visa allows dual intent. The concept of dual intent allows the foreign national the discretion to determine whether he or she will maintain a foreign residence in the individual’s home country; this ultimately demonstrates to USCIS an intent to permanently live in the home country. In contrast, there are other nonimmigrant visas, where the individual is required to maintain a foreign residence and not have an intent to abandon the foreign residence for permanent residence in the U.S.

The L visa also allows for intermittent or full-time employment. If an individual is employed full-time and holds L-1A status, the individual may be granted an initial validity period of three years, with the ability to extend for up to seven years in two-year increments. If an individual is employed full-time in L-1B status, the individual may also be granted an initial validity period of three years but may only extend for up to five years. If an individual is working in the U.S. intermittently, the individual may enter and exit indefinitely.

The overall benefit of utilizing an L visa allows for continuity with an employer abroad, while living and working in the U.S. for up to five or seven years. During this time, the L-1 visa holder may bring a spouse or unmarried child in dependent L-2 status. If during this period the L-1 visa holder decides to become a permanent resident of the U.S., the individual may apply for the benefit without jeopardizing his or her L visa status.

Pointers

Understanding the L-1 visa and its requirements are imperative to better determine whether an individual qualifies for this benefit. The policy memorandum focuses on two points:

  1. The requirement that the L-1 beneficiary remain outside of the U.S. during the one-year continuous employment obligation, exceptions apply; and
  2. The requirement that all obligations are met by petitioner and beneficiary, including the above-mentioned requirement, at the time of filing.

As previously stated, a foreign national eligible for the L visa must have one continuous year of foreign employment with a qualifying entity within the past three years at the time the initial petition is filed.[2] An exception to this rule relates to brief periods of presence in the U.S. More specifically, the exception allows the foreign national to enter the U.S. in lawful status for a brief period of personal travel or at the request of the qualifying entity for business, without interrupting the full year of continuous employment outside the U.S.

What Qualifies as a Brief Trip?

Current regulation dictates the calculation of the full year of employment abroad to be continuous. If continuity is broken, the individual must restart the one-year calculation. However, a brief trip during the one-year requirement may qualify for an exemption.

On its face, the statute is silent on the physical presence of the foreign national at the time of filing, thus creating a gap in determining whether the foreign national may be inside the U.S. utilizing the “brief trip” exception while seeking an L visa. However, this gap is closing due to published decisions further clarifying gray areas found within the black letter law.

Specifically, a recent decision by the Administrative Appeals Office states that an individual who has worked for a qualifying entity abroad for one continuous year but has since entered the U.S. for a period of two or more years with a new company and under a different status may not benefit by transitioning to L status with the previous company.[3] Though this example may satisfy the continuous year of employment abroad within the three previous years requirement, this instance does not align to the spirit of the L visa requirements. The reasoning for this is that it does not allow for true continuity with the company in order to qualify the individual as a true intracompany transferee within the visa classification requirements of the executive, managerial or specialized knowledge category. This decision has since been adopted by USCIS to more consistently adjudicate petitions.

On the contrary, an employee who temporarily visits the U.S. in B-1 or B-2 status may toll the year of continuous employment. For example, if an employee has entered in B status for an aggregate of 60 days, this amount of time will neither count toward or against the one-year requirement.

Overall, an individual working for an unrelated employer or spending long periods of time within the U.S. will interrupt the year of continuous employment calculation, while brief stays in the U.S. may create an exemption to the year of continuous employment requirement.

When Does the Qualifying Three-Year Period Begin?

As aforementioned, the individual must have worked outside of the U.S. for the qualifying company within the past three years. If the individual has worked within the U.S. for the qualifying company as a principal beneficiary in a different status, such as H-1B or E-2 status, then this will require an adjustment to the qualifying dates to determine the three-year period. Therefore, if an individual is employed within the U.S. for six months, the qualifying three-year adjustment is pushed back six months.

However, if an individual is working while holding dependent status such as L-2 or F-1, then the three-year period is not adjusted. The reasoning behind this rule pertains to the purpose of admission. Specifically, the purpose of admitting an individual in L-2 status is to accompany the L-1 visa holder as a spouse or unmarried child. Also, the purpose of an individual in F-1 status is to obtain an education in the U.S. The associated work authorization granted to an L-2 or F-1 visa holder is ancillary to the status and is not the main purpose of admission, thus allowing the individual the benefit of not adjusting the three-year period. This in turn protects some individuals in dependent status, and those who do not initially enter the U.S. for the sole purpose of long-term employment.

How Cases are Affected Moving Forward

The policy memorandum was issued to clarify requirements of the L-1 visa for consistent adjudications by USCIS personnel. As a byproduct, the memorandum allows for greater transparency to stakeholders setting expectations in how petitions are adjudicated. With increased transparency, the memorandum will therefore facilitate more timely adjudications by increasing the quality of petitions submitted to USCIS. Ensuring the foreign national qualifies for the benefit before filing the petition is necessary for more streamlined adjudication, lessening the backlog in petitions awaiting adjudication and lessening the number of petitions filed on behalf of foreign nationals that do not qualify for the benefit.


Miatrai Brown is an attorney with Erickson Immigration Group.

The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

[1] PM-602-0167.

[2] See INA 203(b)(1)(C) and 8 CFR 204.5(j)(3)(i).

[3] See Matter of S-P- Inc., Adopted Decision 2018-01 (AAO March 19, 2018).