USCIS Clarifies the 1-Year Foreign Employment Requirement31 Dec 2018
In order for an L-1 petition to be approved, one of the basic requirements is that the beneficiary has worked abroad for a related entity for at least one year in the past three years. This is often referred to as the “one-in-three” rule. The U.S. Citizenship and Immigration Services (USCIS) has issued a policy memorandum clarifying how USCIS officers should calculate the one-year period of foreign employment when the beneficiary has traveled to the United States during that period.
Time Spent in U.S. While Employed by Foreign Entity Does Not Count
The policy memorandum clarifies that L-1 beneficiaries must be physically outside the United States during the required continuous one-year duration of employment. Brief trips to the United States for business or pleasure do not interrupt the continuous one year, but the number of days the beneficiary spends in the United States ultimately will be subtracted from the time the qualifying foreign organization employs the beneficiary abroad.
The memo further notes that the petitioner and the beneficiary must meet all requirements, including the one-year of foreign employment, at the time the initial L-1 petition is filed.
Time Spent in U.S. for Related U.S. Entity Adjusts Three-Year Period
As mentioned, in order to qualify for L-1, one must have worked for the foreign entity for at least one year in the past three years. Normally, the three-year period to be examined is the three years immediately preceding the date the petition was filed. The memo explains, however, that there is an exception to the period looked at to meet the requirement for the one-in-three rule. If the foreign national worked for the foreign entity, and then comes to the U.S. to work for the related U.S. entity in a status other than L-1 (e.g., H1B, E-2), the USCIS officer should look at the three-year period immediately prior to the individual’s having been admitted to the United States.
The memo provides an example to illustrate this point.
[I]f a beneficiary worked in the United States in a 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.
This exception does not apply if the foreign national comes to the U.S., but is not working for the related U.S. entity. For instance, if the foreign national comes to study or to work for an unrelated U.S. entity, the one-in-three rule would be met only if the beneficiary worked in the qualifying position abroad for at least one year in the three years preceding the date the petition was filed.
This policy memo generally is consistent with prior guidance that has been provided by the USCIS, both formally and informally. Still, this updated guidance should put to rest a few of the questions stakeholders may have had, in years past, regarding meeting the one-in-three rule requirements.
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