L-1A Intracompany Transferee Qualifying Employee
The One Year Abroad Requirement
In today’s global marketplace there are a significant number of companies that do business in more than one country. Having a presence in multiple countries creates a need for transferring employees between those locations. Governments, like ours, that are interested in competing in the global marketplace have immigration laws that make this possible. Building on my previous article which introduced the L-1A Intracompany Transferee visa, this article will examine the one year abroad requirement set forth by the code for qualifying employees.
8 C.F.R. §214.2(L)(1)(ii)(A) defines intracompany transferee as:
“an alien who, within three years preceding the time of his or her application for admission into the United States, has been employed abroad continuously for one year by a firm or corporation or other legal entity or parent, branch, affiliate, or subsidiary thereof, and who seeks to enter the United States temporarily in order to render his or her services to a branch of the same employer or a parent, affiliate, or subsidiary thereof in a capacity that is managerial, executive, or involves specialized knowledge. Periods spent in the United States in lawful status for a branch of the same employer or a parent, affiliate, or subsidiary thereof and brief trips to the United States for business or pleasure shall not be interruptive of the one year of continuous employment abroad but such periods shall not be counted toward fulfillment of that requirement.”
The L-1A is a special visa provided for employees TRANSFERRING to the United States. The purpose of the L-1A is to provide international companies with a means to transfer senior level employees to the United States without the same burdens imposed on companies in the United States seeking to recruit new hires from abroad. That being said, it is up to the petitioning company to prove to the adjudicating officer that the employee beneficiary of the L-1A petition is in fact a current employee that is seeking a transfer to the United States, and not simply a newly hired foreign manager or executive relocating to the U.S.
So, what makes a person a current employee? Good question. To determine whether an employee meets the requirement, you must evaluate the three-year period before the date the petition is submitted. During that time, the employee must have worked continuously outside the United States for one year in a management, executive, or specialized knowledge position for the same employer seeking the transfer. It is permissible for the employee to spend reasonable amounts of time inside the U.S. attending business meetings, conferences, or conducting business. It is important to know that the time spent in the U.S. will not count toward the one-year requirement but will also not destroy the time previously accrued. For example, if a company submits its petition on January 1st, and the employee spent the months of March and July from the previous year conducting business in the U.S., then the time counted toward the one-year abroad requirement should be 14 months to allow for the two months spent in the U.S.
When submitting the petition, acceptable forms of proof for the one-year of employment can be payroll records such as copies of check stubs. You should also include a letter from the employee’s bank certifying deposits that correspond to each pay check as well. In addition, a letter or affidavit may be provided from an officer or Human Resources representative within the organization that describes particularly how the employee meets the requirement set by the code. These items satisfy who employed the beneficiary.
If the beneficiary spent time in the U.S. it will also be necessary to provide the adjudicating officer with a copy of his or her CBP travel record. This can be obtained here. I always include a spreadsheet that illustrates the calendar days spent inside the United States versus the calendar days spent outside the United States and go as far back from the petition date as necessary to make one full year abroad. This is acceptable as long you don’t have to go more than three years back and the beneficiary was in lawful status at all times while in the United States. The spreadsheet provides an accounting for the officer in graphic form making it easy for him or her to accept the one-year requirement.
In addition to the one-year requirement, it is also necessary that the employee was performing in an executive, managerial, or specialized knowledge capacity while abroad. The next article will discuss exactly what that means and how it is evaluated for purposes of the visa petition.