USCIS Issues Memo Clarifying Requirements for L1 Petitions

Yesterday, USCIS issued an alert clarifying the requirements related to the L1 – Intracompany Transferee non-immigrant visa. The L1 visa is used by companies and investors wishing to transfer key personnel to the United States to manage or start a branch.

The basic requirements for the L1 visa are the employee position must be in a managerial, executive, or a specialized knowledge capacity, and the employee must have worked for the foreign entity for one continuous year during the previous three years.

The new policy change clarifies the one year of work requirement for the L1 visa. Previously there had been no guidance related to when the three years start and finish in calculating the one year of work for the foreign entity.

The issue specifically arises when the employee is already in the U.S. on a different visa, such as an H-1b, E2, or L2 visa. USCIS’s new policy is meant to create a uniform calculation for determining eligibility for the L1 visa in the context of the one year requirement.

Specifically, USCIS will calculate the three years from the date the L1 petition is filed. The only exception to this is if the employee is in the U.S. working for the same entity in another visa category. In that case the three year look back will start from the date the employee entered on their current non-immigrant visa.

As an example USCIS wirtes, “if a beneficiary worked in the United States in valid H-1B status for a qualifying organization from January 2, 2017, through January 2, 2018, and the petitioner filed for L-1 nonimmigrant status for the employee on January 2, 2018, the pertinent three-year period will be from January 1, 2014, to January 1, 2017.”

Additionally, the memo clarifies that all time spent in the U.S. during brief periods over the previous year will need to be accrued by the employee before they can satisfy the one year requirement. For example, if the qualifying foreign entity began to employ the beneficiary on January 1, 2016, and the beneficiary made brief trips to the United States that year for a total of 60 days, the beneficiary would need to accrue at least an additional 60 days of qualifying employment abroad after January 1, 2017, in order to meet the one-year foreign employment requirement.

As USCIS continues to tighten regulations on all employment based petitions we are seeing rule changes happen on a continuous basis, including unwritten rules. The L1 visa category is one that has become fraught with obstacles.

Contact one the lawyers at Perelmuter Law Ltd. today with any questions regarding your immigration needs.