Posts Tagged ‘intracompany transfer’

USCIS Issues Policy Memo on L-1 Employment Abroad Requirement

Thursday, November 29th, 2018 by W. Scott Railton

U.S. Citizenship and Immigration Services (USCIS) issued a policy memo this week to add clarification to the L-1 Intracompany Transfer status one year of employment abroad requirement. The memo states that:

  • The L-1 beneficiary must be physically outside the United States during the required one continuous year of employment, except for brief trips to the United States for business or pleasure; and
  • The petitioner and the beneficiary must meet all requirements, including the one year of foreign employment, at the time the petitioner files the initial L-1 petition.

The agency says the memo is a clarification of policy.  The memo describes the issue as:

 INA section 101(a)(15)(L) and 8 CFR 214.2(l)(1)(ii)(A) require that the  beneficiary work abroad for one continuous year within the three years preceding the “application for admission into the United States.” The statute is silent about those beneficiaries who have already been admitted to the United States in a different classification. However, 8 CFR 214.2(l)(3)(iii) uses a different reference point and states that the one year of foreign employment must have occurred “within the three years preceding the filing of the petition.” The difference in phrasing has led to questions about which point in time should be the appropriate reference point in determining whether the one-year foreign employment requirement has been satisfied.

 The memo instructs officers to:

Always look back three years from the date the initial L-1 petition was filed and then:

 Step 1: Determine the dates the beneficiary worked for the qualifying organization abroad.

 Step 2: Determine the lengths of any breaks in the beneficiary’s qualifying employment during the three years before the petitioner filed the L-1 petition. If the beneficiary has lawfully worked for a qualifying organization in the United States as a principal beneficiary of an employment-based nonimmigrant petition or application, adjust the three-year period accordingly.

 Step 3: Subtract the total length of all the breaks identified in Step 2 from the relevant three-year period. If the result is a continuous one-year period within the relevant three-year period, then the petitioner has met the one-year foreign employment requirement.

 Note:  The memo says that brief trips to the United States as a visitor will not stop the continuous period, but each day must be subtracted from the one year calculation.  This guidance penalizes persons based in Canada who visit the U.S. and return the same day, which is actually quite common for Canadian business owners and managers.

Note:  The memo says persons working in the U.S. for the related company in another status, such as H-1B or E-2, will be able to look back to the three years prior to their original date of admission. However, persons in F-1 Optional Practical Training or in spousal work authorization categories (e.g. L-2, E-2) will not be able to do so. In these latter cases, the three year “look back” period will run from the date of the filing of the petition.  So, an employee who starts with a U.S. company in E status two years ago would actually look back five years to determine whether the continuous period requirement is met.

As with all things USCIS these days, the memo will probably lead to even more burdensome requirements of proofs for companies that have trans-national employees and operations. We’ll keep an eye on it all, and advise companies in accordance with agency practice. Aspects of the memo may need to be challenged in court at some point, as the L is one key step towards lawful permanent residence for valued executives and managers.

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“Specialized Knowledge”: A Moving Target

Friday, June 17th, 2011 by W. Scott Railton

One common but increasingly difficult nonimmigrant option for employers is the L-1B intracompany status. For qualifying international organizations, it is sometimes possible to transfer a foreign employee to work in the United States if they have “specialized knowledge.”  USCIS recently held a stakeholder meeting on the L-1B, and has subsequently published minutes, which can be found here.

The Immigration and Nationality Act states that a person can be transferred to the United States to work at the same employer or a subsidiary or affiliate “in a capacity that is managerial, executive, or involves specialized knowledge…”

The regulations define specialized knowledge to mean “special knowledge possessed by an individual of the petitioning organization’s product, service, research, equipment, techniques, management, or other interests and its application in international markets, or an advanced level of knowledge or expertise in the organization’s processes and procedures.”

Read closely, it is clear this is a vague and yet broad definition.  In practice, however, “specialized knowledge” has always been something of a moving target.

In recent years, particularly in light of the recession, it has become increasingly difficult to satisfy DHS that a person has such specialized knowledge, and therefore merits L-1B status. Adjudicators apply disparate definitions, and rely on their own interpretations of all sorts of administrative guidance which has been issued over the years.

At the end of the day, the approval or denial of an L-1B petition often comes down to the gut feeling of the adjudicator—a gut feeling which may well be based on shaky legal premises, such as the application of some sort of de facto labor market test.  It has become routine for new and novel expressions of the above stated regulation to find their way into requests for evidence, which ultimately are just another way of the adjudicator saying, “I don’t think so…..but let’s hear what else you have to say. ”

A successful L-1B petition therefore is an exercise in advocacy and persuasion, and typically needs to anticipate the reservations an adjudicator might have which aren’t plainly written into the regulations and other administrative guidance.

 

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