The U.S. Citizenship and Immigration Services (USCIS) has published a new policy memorandum (PM) on November 15, 2018 regarding the one-year foreign employment requirement for L-1 petitions. It clarifies the requirement for the qualifying organization to employ the principal L-1 beneficiary (foreign employee) abroad for one continuous year during the three years before the time of filing. This new memo is aimed to guide L-1 adjudications by establishing a standard calculation of time for the required one continuous year of foreign employment.
It states that the beneficiary must be outside of the U.S. for one continuous year of employment and that the beneficiary and petitioner (qualifying employer) must meet all requirements at the time of the initial filing. This policy memo is used only to guide USCIS officers on L-1 adjudications and it overrules any prior guidance on this issue.
The Immigration and Nationality Act (INA) states that a foreign national may be eligible for an L-1 classification if the foreign national has been employed continuously for one year by a qualifying entity within the three years preceding the time of their application for admission into the United States. The beneficiary must also seek to enter the U.S. temporarily to continue working for the same employer in a managerial, executive or special knowledge capacity.
The L-1 is a nonimmigrant, intracompany transferee visa classification. The L-1A allows for a U.S. employer to transfer an executive or manager employee. The L-1B is for an employee with specialized knowledge. Title 8, Code of Regulations (8 CFR) defines an intracompany transferee as someone who, has been employed abroad continuously for one year (by the qualifying entity) and within the three years preceding their L-1 application and admission into the U.S. Individuals who take brief trips for business or pleasure (on B-1 or B-2 visas) will not be viewed as interrupting their 1 year of continuous employment.
The one year of continuous employment must occur outside of the U.S.
The one-year foreign employment must be full-time for the qualifying organization and outside of the U.S. Any time spent working inside the United States will not qualify towards that one year. The work abroad must be qualifying work; meaning that the beneficiary must meet the managerial, executive, or specialized knowledge capacity.
Brief trips for business or pleasure to the U.S. do not interrupt the continuous one-year requirement.
Brief trips to the U.S. on a B-1 or B-2 visa will not count towards or against the one-year requirement. Rather, USCIS officers will subtract the days the beneficiary spent in the U.S. from the time they were employed by the qualifying entity abroad. If the beneficiary worked for a qualifying entity abroad for one continuous year but spent 60 days of that year in the U.S., then they would need an additional 60 days of qualifying employment abroad to meet the one-year requirement.
Time spent working for the qualifying organization in the U.S. results in an adjustment of the three-year period.
Time spent by the beneficiary in the U.S. working for the qualifying organization (under a valid status, such as H-1B or E-B2) does not count towards the one-year requirement. However, it does result in an adjustment of the three-year period. The three-year period will be based on the start of U.S. employment rather than when the petition is filed. If the beneficiary began working on January 2, 2018 then the three-year period will be from January 1, 2015 to January 1, 2018.
Periods of employment with the qualifying organization in the U.S. as a student or dependent do not result in the adjustment of the three-year period.
Time spent by the beneficiary working for the qualifying organization while on a dependent or student status will not qualify for the adjustment of the three-year period. This is because the purpose of the beneficiary’s admission was not to work for the qualifying organization, but rather to study or as a dependent.
Time spent in the U.S. not working or working for an unrelated employer does not result in an adjustment of status for the three-year period.
Except for brief trips to the U.S. on B-1 or B-2 status, the time spent in the U.S. not working or working for an unrelated employer will interrupt the one continuous year of foreign employment and does not qualify for an adjustment of the three-year period.
The date on which the petitioner files the initial L-1 petition is the date the USCIS officer will use to determine if the beneficiary satisfies the one-year foreign employment requirement.
This new policy supports the Buy American, Hire American (BAHA) Executive Order. With the mentality of putting American workers first, the USCIS has issued policies, such as this one, to clarify guidelines and ensure consistent adjudications for all employment-based immigration programs.
 INA section 214(c)(2)
 8 CFR 214.2(1)(1)(ii)(A)