L-1 Intracompany Transfer Visa: USCIS Announces a Restrictive New Interpretation
A new USCIS memo introduces changes to the L-1 Intracompany Transfer Visa's requirements that could very well result in severe complications concerning one's eligibility for the benefit.
In a newly instituted memo titled "Satisfying the L-1 1-Year Foreign Employment Requirement,"
The Memo's Purposes with Concern to L-1 Intracompany Transfer 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.
When the Three-Year Period May be Adjusted and When it May Not
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 (https://www.calivisa.com/
• 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.
Further Stipulations Concerning a Qualified Year of Continuous Employment Prior to L-1 Visa Application
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.
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.
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 (https://www.calivisa.com/
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