What counts as qualifying foreign employment for L-1 visa?

L-1 visa allows U.S. employers to transfer an employee from a foreign office either as a manager or executive, or as an employee with specialized knowledge.  One of the basic requirement of such transfer is that the employee must have been working for the foreign office for at least one continuous year immediately before his or her admission to the United States.   The requirement is fairly easy to satisfy if, at the time of filing the L-1 visa petition, the foreign worker is currently employed at the qualifying foreign office of the U.S. employer and has been an employee there for many years.

But what happens if U.S. employer wants to hire someone who has indeed worked at a qualifying foreign office for more than one year but has already been admitted to the U.S. in a different visa status?  Must the one year of qualifying foreign employment be within three years of the last admission in any visa status, or specifically under L-1 visa only?

Let’s say, for example, an engineer from Japan takes a leave of absence from his work in Tokyo to start a prestigious MBA program in the US  He has been working as a highly skilled engineer at a major company for five years, and is ready to take the next step in his career with more managerial responsibility.  He is admitted to the US with an F-1 student visa, and never leaves the country until he graduates after 3 years. His employer in Japan has a subsidiary in the same city where, and now wants him to work at the U.S. subsidiary using the proprietary knowledge he gained from working at the parent company in Tokyo.  Can the US employer apply for an L-1 visa petition using his time as an engineer in Japan as qualifying employment?, Since he was employed there for more than one year during the three years immediately before his last admission to the US as an F-1 student, should he qualify?

The short answer to this above scenario, at least according to the USCIS policy memo issued on November 15, 2018, is an unfortunate NO.  Despite some ambiguous language in the Immigration and Nationality Act (INA) and Code of Federal Regulations (CFR), the USCIS took the position that the one year foreign employment must have happened within the 3 years of filing of the L-1 visa petition, not just any admission to the US.  Therefore, if the foreign worker has already been in the U.S. in a different visa status for more than two years, like the case for our Japanese engineer, he will not be able to satisfy the qualifying foreign employment requirement.

The one exception of this situation is if the foreign worker is already in the US in a different visa status but has been working for the same US employer now wishing to petition for an L-1.  So in our scenario, if the engineer from Japan came to the US three years ago on an H-1B visa to work for the US subsidiary, instead of doing an MBA as an F-1 student, the US subsidiary can petition for his L-1 at anytime even if his qualifying foreign employment was more than three years before the filing date of the L-1.  It is important to note that working for the US employer in other dependent visa status with an EAD, such as under L-2 visa or E-2 visa, do not count and will not result in an adjustment of the three-year period. The rationale of the USCIS is that even though the foreign worker’s employment was with the same US employer, the purpose of a dependent visa or an F-1 visa is was not “for” that particular employment so it shouldn’t count.  This is the case even if the qualifying foreign entity or the US employer paid for the worker’s study in the U.S.

This recent USCIS policy memo was issued specifically in support of the Buy American and Hire American Executive Order, and is in line with their current trend of applying a very strict standard on all employment based immigration programs.  US employers must ensure that the L-1 employee meets this new guidance when calculating the term of his or her qualifying foreign employment.