USCIS published a policy memorandum clarifying the requirement for L-1 intracompany status that the qualifying organization employ the beneficiary abroad for at least one year continuously within the past three years of the L-1 petition filing, as opposed to when the L-1 beneficiary is admitted into the US.
L-1 visas are available to persons who have worked abroad for one continuously year within the preceding three years in an executive, managerial, or specialized knowledge capacity for a firm or corporation or other legal entity, or an affiliate, parent or subsidiary thereof, and who are being transferred temporarily to the United States to work in an executive, managerial, or specialized knowledge capacity for the same employer or a subsidiary, parent or affiliate thereof. The L-1B has a maximum period of stay of five years, compared to the L-1A of seven years.
US immigration law and the immigration regulations are inconsistent in defining when the one-year employment requirement must be met. According to INA §101(a)(15)(L) and CFR §214(c)(2), the L-1 nonimmigrant must have worked for at least one year within the past three years at the time of his “application for admission into the United States.” However, 8 CFR§214.2(l)(3)(iii) uses a different reference point and states that the one year of foreign employment must have occurred within three years of filing the petition. Therefore, the US petitioner cannot file L-1 petition before the L-1 beneficiary meets the one-year foreign employment requirement with the goal that the L-1 beneficiary will have met the one-year foreign employment requirement after the petition has been filed and approved and the L-1 is admitted into the US.
The L-1 policy memo also emphasizes the following points. First, the L-1 beneficiary must have met the one continuous year of qualifying employment outside the US. The beneficiary’s time in the US does not count toward the requirement. Second, brief trips to the US for business or pleasure do not interrupt the one-year continuous employment requirement. However, such periods of stay in the US do not count toward the one-year employment requirement and must be accrued outside the US. USCIS uses an example of the foreign worker being in the US for 60 days within the past year as not interrupting the continuous employment abroad.
Third, USCIS notes that the time the beneficiary spent working for the qualifying entity in the US results in adjusting the three-year period for determining whether the beneficiary satisfies the one-year foreign employment requirement. A nonimmigrant in the US will be considered to have worked for the qualifying organization in the US if he or she is employed by that organization as a principal beneficiary of an employment-based nonimmigrant visa petition, such as the H-1B professional worker or E-2 treaty executive or essential employee. It uses the following example: if the foreign national worked in the US in H-1B status for the qualifying entity from January 2, 2017, through January 2, 2018, and the petitioner was filed for L-1 status on January 2, 2018, the relevant three-year period will be from January 1, 2014, to January 1, 2017.
Fourth, the beneficiary’s employment with the qualifying entity in the US as a dependent or foreign student does not allow for an adjustment of the three-year period for determining whether the beneficiary has met the one-year continuous foreign employment requirement. Therefore, if an L-2 spouse dependent or F-1 student worked for the qualifying entity in the US, the three-year period would start from the filing of the petition.
Finally, USCIS states that if the beneficiary interrupts or terminates his or her employment for the qualifying organization as a principal beneficiary for more than two years during the three years preceding the petition filing, then the one-year foreign employment requirement cannot be met. The beneficiary would have to accrue a new one-year period of foreign employment to qualify for L-1 status.