L-1 Intracompany Transfer Visa: USCIS Announces a Restrictive New Interpretation
USCIS Memo’s Clarification of the L-1 Intracompany Transfer Visa Cements New Barriers for Satisfying Employment Requirements
In a newly instituted memo titled “Satisfying the L-1 1-Year Foreign Employment Requirement,” dated November 15th of 2018, United States Citizenship and Immigration Services (USCIS) has implemented revisional guidance to adjudicators that unequivocally narrows the confines of a successful L-1 Visa request.
As a bit of background, it would be beneficial to remember that, in general, an employer may sponsor an existing employee working outside the U.S. as an L-1 intracompany transfer if:
There is a qualifying relationship between the U.S. company in question and its foreign counterpart, such as that of a parent company, branch, subsidiary or affiliate.
Both the U.S company and its foreign counterpart are to remain active in doing business and are viable for the entire duration of the beneficiary's employment.
Additionally, and of main topical focus concerning USCIS’s memorandum, an employee may qualify for the L-1 Visa classification only if:
He or she has been employed abroad by the transferring organization in a full-time capacity for at least one year within the three years prior to the L-1 petition’s filing and will continue the proposed employment in the U.S. for the same employer or its affiliate.
Most of the following discussion and warning will primarily concern an employee’s eligibility as per satisfying the one year of experience abroad. Specifically, USCIS’s recently imposed guidance sets forth parameters as to what constitutes a continuous year of qualifying employment and the period of time in which that requirement may be satisfied.
The alterations in practice of adjudication officers entailed by this memo are of emphatic importance to immigration law practitioners as well as any potential employers or beneficiaries looking to take advantage of the L-1 nonimmigrant visa. Implemented by the memo are redefinitions of the visa’s criteria. All future endeavors to obtain the L-1 Intracompany Transferee Visa classification thus call for increased vigilance and meticulousness in making an informed judgement.
The Memo’s Purposes with Concern to L-1 Intracompany Transferee Visa Requirements
USCIS’s assertion is that the memo is intended to clarify two things:
In general, a viable L-1 beneficiary must have remained physically outside the U.S. during the year of continuous employment with the sponsoring multi-national corporation (MNC).
The petitioning company and intended beneficiary must meet all the L-1 classification requirements, including the one-year continuous employment requirement, at the time that the petition is filed.
In observing that the referenced statute makes no mention of how to assess a beneficiary who has already been admitted to the U.S. under a different nonimmigrant category, the memo resolves that the correct reference point in deciding whether the year of continuous employment falls within the last three years is in fact the initial L-1 petition’s filing date. However, this three-year period may be adjusted in certain cases.
Furthermore, in cases concerning requests for an extension of L-1 status – or even changes of status including L-1A to L-1B or its opposite – under the new memo the discussed requirements must still have been met at the time of the initial L-1 petition’s filing.
When the Three-Year Period May be Adjusted and When it May Not
It is posited in 8 CFR §214.2(l)(1)(ii)(A) that "Periods spent in the United States in lawful status for a branch of the same employer or a parent, affiliate, or subsidiary thereof and brief trips to the United States for business or pleasure shall not be interruptive of the one year of continuous employment abroad but such periods shall not be counted toward fulfillment of that requirement.” With concern as to which cases constitute an appropriate adjustment of the three-year period, USCIS thereby concludes the following:
Individuals who work "for" the qualifying organization as a principal beneficiary of an employment-based nonimmigrant petition or application – such as an H-1B or E-2 visa classification – are entitled to an adjustment of the three-year period. The qualifying span in these cases would then begin three years prior to the applicable U.S. entry date.
Individuals who work in a dependent status (L-2) or student status (F-1) do not qualify for an adjustment of the three-year period. This is due to their specific purposes of admission not being to work "for" the qualifying organization.
With regard to F-1 students, this policy of non-adjustment would remain even if the qualifying employer financed the nonimmigrant student’s studies.
Individuals who work for an unrelated employer, or those who have come to the U.S. without proceeding to work, additionally do not qualify for an adjustment to the three-year period.
The concise consequence of these conclusions drawn within the memo are that, if an F-1 student’s or L-2 dependent’s last period of continuous qualified employment falls outside the two years prior to the L-1 petition’s filing, he or she is summarily ineligible for a successful adjudication. This alters previous practice drastically.
For example, if a prospective and otherwise qualifying L-1 beneficiary had worked for the petitioner for a continuous year outside the U.S. and was then admitted to the U.S. as an F-1 student, where they continued to work under the same company or its affiliate, such a case would without question have still qualified for the L-1 classification prior to the memo’s revisions. This is because the qualifying employment occurred within three years prior to his or her admission to the U.S. Now, due to the fact that the F-1 status was not granted specifically in order for the beneficiary to work for the petitioning employer, if more than two years have passed following admission under the benefit, the previous qualifying employment will not be able to suffice within the allotted period.
Further Stipulations Concerning a Qualified Year of Continuous Employment Prior to L-1 Visa Application
There are two additional nuances mentioned within USCIS’s memo that could affect whether or not a prospective L-1 beneficiary’s year of continuous employment abroad truly satisfies the visa’s requirements.
The Year of Continuous Qualifying Employment Must Occur Outside the U.S.
Only time accrued working outside the U.S. for the petitioner or qualifying organization may be used to satisfy the one-year foreign employment requirement. Any time spent within the U.S. in inapplicable, even if the foreign entity in question continued to employ or compensate the beneficiary during the time spent there. The continuous year of employment abroad must also be employment that is qualifying – that is, full-time and in a managerial, executive, or specialized knowledge capacity.
It is worth noting that, unlike the continuous year employed abroad, in cases in which the beneficiary is then admitted to the U.S. under a qualifying employment-based nonimmigrant petition or application – such as an H-1B or E-2 – and therefore qualifies for adjustment of the three-year period, the employment does not necessarily have to be in a managerial, executive, or specialized knowledge capacity.
Brief Visits to the U.S. for Business or Pleasure Do Not Interrupt the One Continuous Year
While the beneficiary is employed in a qualified capacity abroad, brief trips to the U.S. as a B-1 or B-2 visa recipient will toll rather than interrupt the required year of continuous foreign employment. This is to say that the time amassed in these visits will not be tallied towards or against the beneficiary’s satisfaction of the criterion. For example, if during a year of foreign employment dating from January 1st to December 31st a beneficiary accumulated thirty total days in the U.S. from brief visits, he or she would need thirty additional days of continuous employment outside the U.S. – say, January 1st to January 30th – in order to satisfy the one-year foreign employment requirement.
A Step-by-Step Process of Determining L-1 Eligibility Under the New Memo
As is directed to USCIS adjudicators within the memo and is concurrently appropriate for those wishing to assess their own L-1 eligibility or that of their clients’, the following procedure of analysis is advised:
Determine the dates the prospective L-1 beneficiary worked for the qualifying organization abroad.
Determine the length of any breaks in the period of qualifying employment that falls within the three years prior to the L-1 petition’s assumed filing date. Adjust the three-year period accordingly if, as a principal beneficiary of an employment-based nonimmigrant petition or application such as H-1B or E-2, the beneficiary has lawfully worked for a qualifying organization in the U.S.
Subtract the total length of all the breaks from the applicable three-year period.
If the result of these steps is a continuous one-year period within the applicable three-year period, then a petitioner or legal counsel can follow through with confidence that the criterion requiring one-year of employment abroad has been satisfied as per the memo’s specifications.
As evidenced above, it is imperative that all individuals with possible interest in engaging with the L-1 Intracompany Transfer Visa classification understand USCIS’s memo and all that it entails. Our office can, as always, be contacted if there are any questions or if one is looking for assistance on any number of immigration cases.