In November, USCIS published a policy memorandum clarifying details about the L-1 application requirement which states that a qualifying organization must have employed a principal L-1 beneficiary abroad for 1 continuous year out of the 3 years before the filing of the petition. The details include clarifications about how the year is counted, what causes adjustments to the three-year period of reference, and what does or does not interrupt the continuous year. The relevant points are outlined as follows:
The one continuous year of qualifying employment must occur outside the United States.
Beneficiary must be physically employed outside of the US for the duration of this time;
No time in US can be counted towards the one continuous year, even if the beneficiary was employed and paid for their time in the US;
The beneficiary must have spent the year working in a managerial, executive, or specialized knowledge position (also referred to as “qualifying employment”).
Brief trips to the United States for business or pleasure do not interrupt the one continuous year.
Short trips for business or pleasure do not count towards or against the year;
These trips “toll” the year, which means that the days spent in the US are subtracted from the current progress and added to the end of the year’s counter.
Eg. If the beneficiary came to the US for 2 trips totalling 10 days, their foreign employment year needs to include 10 more days of foreign employment.
The time the beneficiary spent working “for” the qualifying organization in the United States results in an adjustment of the three-year period.
Time spent working in the US does not count toward 1 year requirement, but does change the 3 year period for adjucation;
If the beneficiary is hired in the US as a non-immigrant executive or employee such as H-1B or E-2, the 3 year period is calculated backwards from the start of their US employment period.
Eg. If the beneficiary started working in the US on 1/2/2017, their 3 year period would be 1/1/2014 to 1/1/2017, even if they are filing their petition in 2018.
Periods of employment with a qualifying organization in the United States as a dependent or student do NOT result in an adjustment.
F-1 students do not receive adjustments even if they work for a qualifying company under OPT or if a qualifying company financed their studies;
Dependent status includes L-2 status.
Periods of time in the United States unemployed or working for an unrelated employer do NOT result in an adjustment.
Aside from brief visits mentioned before, longer periods of time spent in the US unemployed or employed in an unrelated company count as an interruption of the 1-Year requirement;
These periods do not result in adjustments for the 3 year time frame.
As shown by these details, the 1-Year Foreign Employment requirement has many factors that affect how the requirement is assessed. If you’re worried about policy details or changes, or you have questions about USCIS memos like this one, reach out to one of our attorneys and we’ll help you with your concerns.