USCIS Clarifies 1-Year Foreign Employment Requirement for L-1 Visas

The United States Citizenship and Immigration Services (USCIS) has issued a policy memorandum clarifying the one-year foreign employment requirement for an L-1 visa for intracompany transferees. Previously, USCIS inconsistently applied this requirement when a foreign national was in the United States in one status but sought to change to L-1 status.

An L-1 visa permits multinational companies to transfer employees (beneficiaries) who have worked in an executive, managerial or specialized knowledge capacity from a foreign office to a U.S. office. To qualify for this visa, the foreign national employee must have been employed abroad for one continuous year in the previous three years. The policy memorandum clarifies five important points:

1. The continuous year of qualifying employment must occur outside the U.S. Any time spent in the U.S. cannot be used, even if the foreign entity paid the beneficiary and continued to employ the beneficiary while he or she was in the United States.
2. Brief trips to the U.S. for business or pleasure toll the one continuous year of employment. For example, if the qualifying foreign entity began to employ the beneficiary on January 1, 2016, and the beneficiary made brief trips to the United States that year for a total of 60 days, the beneficiary would need to accrue at least an additional 60 days of qualifying employment abroad after January 1, 2017, in order to meet the one-year foreign employment requirement.
3. The three-year period, during which the foreign employment must occur, starts before the foreign national enters the U.S. to work for the qualifying organization in some other status, such as H-1B or E-2 status. For example, if a beneficiary worked in the United States in valid H-1B status for a qualifying organization from January 2, 2017, through January 2, 2018, and the petitioner filed for L-1 nonimmigrant status for the employee on January 2, 2018, the pertinent three-year period will be from January 1, 2014, to January 1, 2017.
4. This three-year period starts at the time of filing the L-1 petition, if the foreign national is in the U.S. working for the qualifying organization in a student or dependent status, such as L-2 or H-4.
5. This three-year period starts at the time of filing the L-1 petition, if the foreign national is in the U.S. and not working or working for an unrelated organization.

In light of this clarification, organizations should carefully monitor the amount of time foreign employees spend in the U.S. and know the status in which they entered, when considering applying for an L-1 visa on behalf of an employee.