The rules regarding qualifying employment abroad, required for an L-1 intracompany transfer visa, are clarified, if not changed, in a new US Citizenship and Immigration Services (USCIS) policy memorandum (PM).
Dated November 15, 2018, USCIS PM-602-0167, states that:
- All visa requirements must be satisfied as of the date the agency receives the L-1 visa petition;
- The employee must be physically outside the US for the required 1 continuous year of employment; and
- In certain cases, time spent in the US will not break the continuity required, but that time will not be counted towards the required 1 year.
The PM does not create new law or effect a change in policy. Its stated purpose is to clarify existing rules.
The requirement that a visa petitioner meet all legal requirements at the time the petition is filed is longstanding. It already was not possible to file a defective petition and then cure that defect with facts that occur subsequent to filing. That is why L-1 petitions could never be filed before an employee completed the full 12 months of employment abroad.
The PM repeats the agency’s regulation that brief trips to the US for business or pleasure do not interrupt the required 1 continuous year of employment abroad. The regulations never defined “brief” and the PM, regrettably, doesn’t either. There is an example in the memo of brief trips totaling 60 days during the 1 year. It would have been better if the PM stated whether, for example, 1 trip for 60 days is brief, or 2 trips for 30 days, etc. As a result, the situation is neither improved nor worsened by the PM’s issuance.
Even though the law already clearly states that only days when the employee is physically outside the US may be counted, the PM states that time spent in the US working for a qualifying organization does not count, and updates Chapter 32.3 of the Adjudicator’s Field Manual to reflect this needless clarification.
For the full text of the Policy Memo, can be found at the USCIS website.
Please contact the authors for more information about this PM, the L-1 intracompany transfer visa or other business visas for the US or any other of the many countries where Dentons guides clients on business and cross-border mobility matters.