USCIS Clarifies L-1 Visa Foreign Employment Requirement

One of the many requirements of the international company transferee L-1 visa is for the beneficiary to have worked at least one continuous year out of the past three for the petitioner or an affiliate in another country. This employment abroad must be in an executive, managerial, or "specialized knowledge" capacity. The beneficiary's past three years of employment is scrutinized to see if this is met. There has been confusion about how this "one-in-three" rule applies.  Back in March, USCIS already issued a memo on this same issue in regards to the EB-1C immigrant visa petition. Recently, USCIS has issued another memo, this time in regards to the L-1 nonimmigrant work visa petition.

If the employee has been working outside of the U.S. for the petitioner, the one-year requirement is usually counted from the three years before the date of filing for the L-1 petition. It is not interrupted by business or pleasure trips to the U.S. (typically B-1, B-2 visas). However, these days spent in America do not count toward filling the one year period, and an equal amount of time must be spent working to cover them.

The confusion arises when an L-1 visa worker is already present in the U.S. when the L-1 application is filed.  In this situation, when should the 3-year clock begin and end?

Specifically, the one-year period is adjusted if the beneficiary was sponsored by a petitioner to work in the U.S. with a nonimmigrant work visa, such as H-1B or E-2. If the beneficiary worked for the same petitioner in such status leading up to the L-1 petition filing, then the three years looked at will be from the period right before the start of such employment (usually the date of admission). For example, if the employee worked for the petitioning company in the U.S. from 2017 to 2018 in H-1B status, then USCIS will look at 2014 to 2017 for L-1 foreign requirements. This adjustment does not apply to those working for the petitioner in a dependent status such as L-2 or F-1 OPT. For these cases, the three-year period would be counted from the date of filing like the rest of the cases.

Interruptions can, however, occur from periods of the L-1A worker (1) not working while in the States or (2) working for another employer in the States. As the L-1 requirements include a continuous one-year period, these breaks can determine whether or not an applicant qualifies for L-1 status. This also means having a break lasting over two years will render the beneficiary ineligible for L-1 status. 

This memo provide some clarification to the L-1 visa requirements.  Employers and L-1 workers should mind the changes and avoid breaking the one-year continuous employment requirement. The takeaway is to avoid breaks of employment with the L-1 visa employer for two years or longer.