Q: What’s the reference point to count the 3 years preceding the application for admission? 

A: Generally, the reference point of the three-year period is the date of filing the initial L-1 petition except under circumstances that the L-1 beneficiary has been in another non-immigrant visa working for the same qualifying organization in the United States.

Q: What constitutes the one-year foreign employment?

A: The one-year foreign employment must be continuous, full-time, and in a managerial, executive, or specialized knowledge capacity. In addition, it must be physically outside the United States.

Q: If I travel to the U.S. briefly for business or pleasure during my foreign employment, is it OK?

A: You can travel but the one-year employment with the foreign entity must be such that the beneficiary is physically outside the United States and works full-time. A petitioner cannot use any time that the beneficiary spent in the United States to meet the one-year foreign employment requirement, even if the qualifying foreign entity paid the beneficiary and continued to employ the beneficiary while he or she was in the United States. Such brief stays in US do not interrupt the continuity of the one-year foreign employment but are not counted toward the foreign one-year employment.

Q: If the qualifying foreign entity started employing the beneficiary on January 1, 2018 and the beneficiary worked with the foreign entity during the entire 2018 except making brief trips to the United States for a total of 60 days during 2018, how does the beneficiary satisfy the one-year foreign employment requirement?

A: As in the earlier question, brief trips to the United States for business or pleasure do not interrupt the one continuous year of foreign employment but does TOLL (stops temporarily) the one-year time period. In this case, the beneficiary must work physically for the foreign entity outside the United States between January 1, 2019 and March 2, 2019 (or would need to accrue at least an additional 60 days of qualifying employment with the foreign entity after January 1, 2019).

Q: If the qualifying foreign entity started employing the beneficiary on January 1, 2018, and the beneficiary worked with the foreign entity during the entire 2018 except working for an unrelated entity in the United States for a total of 60 days during 2018, can the beneficiary satisfy the one-year foreign employment requirement by resuming working for the foreign entity between January 1, 2019 and March 2, 2019 outside the United States and can the qualifying US entity file L-1 on March 3, 2019?

A: No. Please note that time spent on working for an unrelated U.S. employer does interrupt the one-year foreign employment period according to the memo.

Q: If the beneficiary is already in the United States in another non-immigrant status, does the time of “application for admission” refers to the day when the alien was admitted to the United States, or the day of filing the L-1 petition?

A: If the beneficiary is already in the United States on other non-immigrant visa, such as B1/B2, F1, L-2, H4 and others, whose primary purpose is not to continue working with the foreign employer, the proper reference point for determining the one-year foreign employment requirement would still be the date when the petitioner files the instant L-1 petition in question. However, if the beneficiary was admitted on a non-immigrant status, such as H-1B, E-2, L-1 or O-1 and has worked for a qualifying U.S. entity on that status (the “US qualifying employment period”), the three-year period is adjusted or shifted backward so that the last day of the three year period falls on one day prior to the US qualifying employment period. (“Adjustment of the Three Year Period”). For example, if a beneficiary worked in the United States in valid H-1B status for a qualifying organization from January 1, 2018, through December 31, 2018, and the petitioner files for L-1 non-immigrant status for the employee on January 1, 2019, the pertinent three-year period is adjusted to between January 1, 2015 and December 31, 2017.

Q: If a beneficiary worked in the United States in valid H-1B status for a non-qualifying organization from January 1, 2018, through December 31, 2018 and the petitioner files for L-1 non-immigrant status for the employee on January 1, 2019, can the above-mentioned adjustment of the three year period be applied?

A: No. The Adjustment of the Three Year Period does not apply to employment with unrelated or non-qualifying U.S. entities. In this example the three period is still the three years prior to January 1, 2019.

Q: What if a beneficiary worked full time as a manager for 1 year between 1/1/2012 and 12/31/2012 for the foreign affiliate of Company A, a US company, then entered in US on F-1 status and was on that status for exactly 2 years between 1/1/2013 and 12/31/2014, then subsequently he worked for 4 years for Company A on H-1B between 1/1/2015 and 12/31/2018, can Company A file L-1 on 01/01/2019?

A: Yes. As previously mentioned, time a beneficiary spent working in the U.S. for a qualifying organization on a qualifying status will result in adjustment of the three-year period. Therefore, the reference point of the three-year period is adjusted back to the date the beneficiary started working for the qualifying U.S. company on H-1B status, i.e., 1/1/2015. Therefore, during the three years preceding the date the beneficiary started working on H-1B status, he had spent exactly one year working for the qualifying foreign company, satisfying the one-year foreign employment requirement. Note that the 2 years on F-1 status seems to break the employment with the qualifying entities according to memo but actually “more than two years” of break in employment is required for disqualification.

Q: What if in the above example, the beneficiary worked for 4 years for an non-qualifying entity on H-1B between 1/1/2015 and 12/31/2018, can he apply for L-1 sponsored by Company A on 1/1/2019? 

A: Since only qualifying employment results in adjustment of the three-year period and there is no qualifying employment, there is no adjustment of the three year period. The three-year period ends on the date of filing L-1, i.e., 1/1/2019. In the three years before 1/1/2019, there is no foreign employment and therefore the beneficiary is disqualified from applying for L-1 on 1/1/2019.

Q: What if in the above example, the beneficiary stayed in F-1 status for 2.5 years between 1/1/2013 and 5/31/2015 and then worked for 3.5 years for a qualifying entity on H-1B between 6/1/2015 and 12/31/2018, can he apply for L-1 sponsored by Company A on 1/1/2019? 

A: No. The three year period shifted back to between 6/1/2012 and 5/31/2015. In that period, the beneficiary did not have more than 1 year of foreign employment.

Q: What if a beneficiary worked full time as a manager for 1 year between 1/1/2012 and 12/31/2012 for the foreign affiliate of Company A, a US company, Company A filed an L-1 petition on 1/1/2013 and then the beneficiary entered US on L-1 working for Company A and was on that status for 3.5 years until 6/30/2017, subsequently the beneficiary worked for 1.5 years for Company B, an unaffiliated company on H-1B for 1.5 years between 7/1/2017 and 12/31/2018, can Company A file L-1 for the beneficiary on 1/1/2019?

A: This is a tricky question. On the one hand, USCIS may deny eligibility because the filing date is 1/1/2019 and the three year period should be between 1/1/2016 and 12/31/2018 as there is no adjustment for non-qualifying employment. Therefore, there is no one year of foreign employment during the three year period. On the other hand, there seems compelling argument that can be made to claim adjustment of the three year period for the prior qualifying employment because the memo explicitly states that the relevant point in time for an officer to determine whether a beneficiary satisfies the one-year foreign employment requirement is the date on which the petitioner filed the initial L-1 petition, regardless of when the beneficiary was, or will be, admitted to the United States. The initial L-1 petition was definitely filed on 1/1/2013 in this example. In addition, there is no policy reason not to consider these L-1 “refile” petitions where no more than two years of disruption occur.  However, note 1 of the memo does point out that the initial L-1 does not necessarily mean the first L-1, but refers to a petition for “new employment” in L-1 status. Assuming the initial L-1 refers to the earliest L-1 filed by the same employer, Company A can still file on 1/1/2019.

Q: Are the rules explained by this USCIS memo the absolute legal requirements?

A: No. These guidance or memos issued by USCIS are not regulations issued following notice and comment rule-making and therefore can be subject to Administrative Procedure Act reviews and challenges if they are found not in line with the relevant provisions of the Immigration & Nationality Act, USCIS regulations and Administrative Procedure Act in federal court litigation.