In a November 15, 2018 memo, USCIS clarified the one-year of employment abroad requirement for L-1 Managers, executives, and specialized knowledge transferees, which is important for an U.S. company with a subsidiary, parent, affiliate or branch outside the U.S. which wants to bring its foreign employees to the U.S. to work.

USCIS has come out with a new policy memo on meeting the L-1 one-year foreign employment requirement, which covers L-1A managers and executives, as well as L-1B specialized knowledge transferees. The petitioning employer must employ the L-1 employee abroad for at least one continuous year out of the past three years prior to filing the L-1 petition with USCIS.

The L-1 employee must spend the one year physically outside the U.S. and second the petitioning employer and employee must meet all requirements, including the one-year of foreign employment.

Thus, the employer cannot file the petition prior to the date the employee reaches the one-year anniversary of employment with its foreign affiliate, subsidiary, parent or branch, even though USCIS may be taking a long time to process and adjudicate L petitions.

Also, if the employee takes a break in employment or stops working for the employer for more than two years during the three years before filing the L petition, then he or she cannot meet the one-year of work abroad requirement.

To meet the one-year requirement, the employer cannot count any days that the employee has spent in the U.S. Only time outside the U.S. counts towards the one year. Brief trips to the U.S. for business or pleasure would toll the time required for the one year. Thus, if the beneficiary came to the U.S. for ten days during the one year, the employer could not file until the beneficiary had been working abroad for 365 plus ten days so not until after the 375th day.

Additionally, time the employee spent working in the U.S. for the employer does not count towards the one-year requirement for work abroad. However, time spent working in the U.S. can be used to adjust the dates of the three-year period. For example, if the employee worked in the U.S. for the employer in H-1B or E-2 status, from January 2, 2017 to January 2, 2018, and the employer filed an L petition for the employee on January 2, 2018, the three-year period would be counted from January 1, 2014 to January 1, 2017 (rather than from January 1, 2015 to January 1, 2018, which would be the case if the employee had never worked for the employer in the U.S.).

However, periods of employment with the employer in the U.S. as a dependent or a student do not count and do not allow the adjustment of the three-year period. Similarly, periods of time in the U.S. working for an unrelated employer also do not adjust the three-year period.