AAO on “One-in-Three” Rule for EB1(c) Multinational Managers / Executives

The U.S. Citizenship and Immigration Services (USCIS) has adopted the Administrative Appeals Office (AAO) decision in Matter of S-P-, Inc. In adopting this decision, the USCIS also issued a policy memorandum clarifying that a beneficiary cannot qualify as an employment-based, first preference immigrant as a multinational manager or executive (EB1(c)) if that beneficiary works for an unrelated company for more than two years after entering the United States.

EB1(c) One-in-Three Rule

One of the requirements for qualifying for an EB1(c) position is that the individual must have worked as a manager or executive for a company related to the U.S. petitioning employer for at least one year within the past three years (referred to as the one-in-three rule). If, however, the foreign national enters the United States to work in nonimmigrant status for the petitioning employer or a related entity, the one-in-three requirement is tolled to look at the three-year period before the date of admission. In other words, rather than looking at the three-year period immediately prior to the filing of the petition, the USCIS will examine the three years prior to entering to work for the U.S. entity. This provides more flexibility to the employer and the foreign national worker in the timing of filing EB1(c) petitions.

Summary of Matter of S-P-

In Matter of S-P-, the foreign national worker was employed in a qualifying position in Indonesia for more than one year. In 2008, he was transferred to the Indonesian company’s U.S. affiliate. In 2010, he left that employer to work for an unrelated U.S. company until 2014. Then, he went back to work for the original U.S. affiliate of the Indonesian company.

The affiliate filed an EB1(c) petition for the foreign national worker, arguing that the one-in-three rule is satisfied by examining the three years prior to admission. The USCIS rejected this argument, determining that, because there was an interruption in employment with the U.S. petitioner, the relevant period was the three years prior to submission of the EB1(c) petition, rather than the three-year period prior to admission to the U.S. On appeal, the AAO agreed with this interpretation by the USCIS, and let the decision stand.

Conclusion

This decision by the AAO is not particularly surprising. It is, however, helpful to have the AAO finally provide clear guidance on the one-in-three rule.

 

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Disclaimer: The information provided here is of a general nature and may not apply to any specific or particular circumstance. It is not to be construed as legal advice nor presumed indefinitely up to date.
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