The L-1 nonimmigrant visa is often used by US companies to transfer in executives and managers (L-1A) or specialized knowledge workers (L-1B) from an overseas company with a qualifying relationship to the US sponsor (parent, subsidiary, affiliate, branch office). To qualify, among other requirements, the individual must have worked for that qualifying overseas entity for one year out of the last three years.
There has long been some confusion and inconsistency concerning how the one year abroad out of the last three was calculated. The statute says that the one year must exist at time of admission, but US Citizenship and Immigration Services regulations indicate that it must exist at the time the petition is filed. Further, there has been confusion where the individual has most recently been in the US in some other status, sometimes for the petitioning company – does the three years go back from time of application, or from the time they entered the US in some other status?
To clarify these issues, US Citizenship and Immigration Services (USCIS) has issued a new policy memorandum. The memorandum clarifies that with regard to individuals who may be in the US working for the qualifying organization in some other visa status (for instance, E-2, H-1B, or O-1), USCIS will look back to the three years before entry in that other status, not three years before the date of filing.
So, an individual who worked for the company abroad for two years before coming to the US and then entered to work for the US company on an E-2 for two and a half years WOULD qualify for an L-1 based on the two years of employment looking back before time of entry counting as qualifying overseas experience. In the absence of this memo, with the “look-back” period going back from the present/time of filing, this person would only be able to count six months of experience abroad and wouldn’t have qualified for L-1 status.
Why might someone want to change to an L-1 if they already have one of these other visa classifications? There are several reasons – perhaps as a prelude to a relatively quick permanent residence process with similar requirements to the L-1A (though there’s no requirement that an applicant in this category already be on an L-1A), or perhaps ownership of the entire company is changing such that the E-2 becomes invalid (the new corporate owner isn’t of the same nationality as the company’s E-2s).
It’s been accepted that time spent physically within the US, even if working on behalf of the overseas employer, doesn’t itself count toward the 365 day year that must be spent abroad – the new memorandum reinforces this without change.
The memo also includes a footnote making the look-back period essentially retroactive – meaning that even extension filings for petitions previously approved will need to be able to document that the individual met the requirements under the current interpretation. This may make certain extensions problematic.
Further, the look-back before entry doesn’t apply to derivatives/dependents (H-4s, O-3s, derivative E-2s).