Multinational Manager Green Card "1-in-3" Rule Tightened

Multinational managers seeking a green card under the EB-1C classification will fail if there is a gap in employment in excess of two years with the petitioning company after entering the U.S., according to a recent Policy Memo issued by USCIS dated March 19, 2018.

What is the EB-1C immigrant visa status? It can be used by a multinational company seeking to bring a high-ranking executive or managerial employee to work permanently in the United States. The employee would normally be transferred from their position in a foreign affiliate to the U.S., although he or she could already been working for the U.S. company in an nonimmigrant visa status. Approval of the EB-1C visa status would make the employee eligible for a U.S. green card. But don't confuse EB-1C with the related non-immigrant L-1A employment visa status, which is temporary in nature.

Aside from proving the employee's eligibility as an executive or managerial worker, there are further requirements to attain the EB-1C visa status. The "one-in-three" rule imposes strict guidelines on the beneficiary's employment time frame. The rule requires that the beneficiary must have worked at least a year for the petitioning company's foreign affiliate within the last three years prior to admission to the United States.  USCIS has interpreted this rule to mean that the three-year reference period is the three years immediately prior to the date of admission of the worker.  Hence, the employee could already be working for the U.S. company for three years and still be eligible for an EB-1C visa. 

A recent USCIS AAO decision, Matter of S-P-, Inc., (adopted as policy memo) further clarifies that any periods of employment under a different company or even unemployment after the date of admission could break the "1-in-3" rule for EB-1C petitions.  Specifically, this means that once the transferee worker arrives the U.S., if he or she stops working for the affiliated U.S. petitioning company for longer than two years, the worker will no longer be eligible for EB-1C status.

It is important to note that the old rule still applies. In other words, if there is no discontinuity between working for the foreign affiliate and the petitioning company, there is no need to worry about the one-in-three rule when applying for EB-1C. Also, the date of entry looked at has to be for the purpose of working for the multinational company. Other date of entries do not qualify. Claiming an older date of entry as the starting point for counting one-in-three years of employment does not work. This is regardless of whether or not the beneficiary worked the year before the date of entry -- once there is an interruption of employment, only the time frame of the most recent three years is looked at.

This may seem complicated at first, but it makes sense when looking at the purpose of EB-1C status. It is meant to help U.S. companies bring in key employees from their foreign affiliates to support the business. Having large gaps between working for the two associated companies detracts from the employee's credibility as a long-term and high-level executive or manager. 

Those seeking the similar L-1A nonimmigrant visa could also face the same restrictions. Although not specifically mentioned, USCIS will likely apply the same rationale when dealing with employment interruptions in adjudicating the L-1A applications. This ruling reminds multinational companies to plan on a longer time scale when it comes to moving their key employees to the U.S.