In November 2018, USCIS issued an updated policy memorandum clarifying the terms of visa eligibility for L-1 visa designates who may have worked abroad for a qualifying entity overseas and, in the interim, held a different nonimmigrant status in the United States.
The USCIS policy memo clears up confusing, inconsistent and conflicting language in the Immigration and Nationality Act (INA) regarding the L-1 visa, which is reserved for executives, managers and specialized knowledge personnel transferred to the United States from overseas affiliated offices.
One provision of the INA requires that the L-1 visa designate must have worked for a continuous year abroad during the three years preceding the individual's application for admission into the United States, while another provision of the law requires that the year working abroad occurs within the three years 'preceding' the filing of the petition.
Clarification Regarding Holding Other Nonimmigrant Status in the United States
The policy memo makes clear that for those individuals applying to adjust their visa from another nonimmigrant classification, such as an H-1B or E-2, the date they may apply for admission to the United States in L-1 classification may be different than the date the L-1 petition was filed. The policy memo also confirms that time spent in the United States working for a qualifying organization does not count towards the one-year foreign employment requirement. This time does result in an adjustment of the three-year qualifying period. Further, time spent working in a dependent status (i.e. E-2 or L-2) will not result in an adjustment of the three year period.
When Does the "One Year in Three" Experience Requirement Start?
The most significant takeaway from the memo is the fact that while it is usually assumed that the date a petition is filed is the reference point for the one-year foreign employment requirement, the ending point for the three-year qualifying period may be adjusted for those who have spent time in the United States working for a qualifying organization. The memo provides an example of an individual who works at a qualifying business from January 2017 to January 2018 under a different employment visa and then requests to adjust to an L-1 visa for that same business. The memo states that the individual would qualify for the 'one in three years of employment abroad' for the period between January 2014 to January 2017, and not the date the petition was filed.
The memo further clarifies that the three-year period will not be shifted back for those individuals who are dependent visa holders, such as those with E-2 or L-2 dependent visas or F-1 student visas, even if the company sponsoring them financed their education. The three-year period will also not be pushed back for those who spent time in the United States working for an unrelated company or without a job. For those individuals, the three-year clock ends on the date the L-1 petition is filed, not when they apply to enter the United States.
A Footnote of Huge Importance for L-1 Visa Filings
One critical additional point is contained in a footnote to the policy memorandum. USCIS imposes a stringent and unprecedented requirement that all interpretations in the memo are to be interpreted retroactively. This represents to the petitioning L-1 employer and the L-1 visa designate that a look back by USCIS will be extended when any extension of stay in L-1 status is filed with the agency, and USCIS will likely demand evidence that all initial L-1 visa requirements were satisfied at the time of the original L-1 petition submission. This would apply in every petition, even if filed by the same petitioner for the same beneficiary. For this reason, we would advise our clients continue to maintain evidence furnished upon the grant of the initial L-1 visa petition to support continued eligibility for this visa category.
Brief visits to the United States do not interrupt the required year working abroad for the purpose of continuous employment eligibility. The time spent in the United States will be added back - and the individual must make up these days spent in the United States in order to meet the prerequisite threshold of the one-year employment abroad eligibility requirement.
