U.S. Citizenship and Immigration Services (USCIS) has published a policy memorandum, effective November 29, 2018, clarifying the requirement that a qualifying organization employ a principal L-1 beneficiary abroad for one continuous year out of the three years before the time of petition filing (“one-year foreign employment requirement”). USCIS said this clarification is intended to ensure consistent adjudication of L-1 petitions by providing a standard basis for calculating time for the one-year foreign employment requirement.
USCIS explained that the L-1 nonimmigrant classification allows a U.S. employer to transfer an executive or manager (L-1A) or an employee with specialized knowledge (L-1B) from one of its qualifying foreign offices to one of its offices in the United States. This classification also allows a foreign company that does not yet have a U.S. office to send an executive or manager, or specialized knowledge employee, to the United States to establish one.
Specifically, the policy memo explains that:
- The L-1 beneficiary must be physically outside the United States during the required one continuous year of employment, except for brief trips to the United States for business or pleasure; and
- The petitioner and the beneficiary must meet all requirements, including the one year of foreign employment, when the petitioner files the initial L-1 petition.
Except as noted in the memo, the one year of foreign employment must occur within the three-year period preceding the date the L-1 petition is filed. USCIS will calculate the three-year period during which the beneficiary must meet the one-year foreign employment requirement. The memo also clarifies what time will be taken into consideration in determining when the three-year period begins.
In a related announcement, USCIS said, “In support of the Buy American and Hire American Executive Order, USCIS is reviewing all employment-based immigration programs to eliminate fraud and ensure consistent adjudications. USCIS has not previously provided specific policy guidance with respect to the conditions by which the three-year clock may be stopped for purposes of determining whether the one-year foreign employment requirement for L-1 beneficiaries has been met. This [memo] improves the process for adjudicating the L-1 nonimmigrant benefit by clarifying the calculation guidelines to ensure they are applied consistently to all L-1 petitions.”