Question on 1 in 3 year rule

[dhemanthk]

Hi,

To be eligible to process L1A by the company, the employee has to be with the company outside US for atleast 1 year in last 3 year.

My Case:
- Employed with the company since 1st April 2013..
- Made business visits to US couple of times in the last one year. During each business visits i stayed around 40 days. (Total of 80 days).
- As of today, i have been with the company for 440 days. 440-80 = 360 days. I will be satisfying 365 days rule by June 20.

My Questions:
- Will business visits also be counted for 1 in last 3 year rule?
- When exactly the 365 days rule is taken into account?
i.e. To start the petition process of L1A (or) The day when we go for PAI
- Any visits to US that is less than 30 days is also counted?

Thanks.

[raghvi]

Hi,

To be eligible to process L1A by the company, the employee has to be with the company outside US for atleast 1 year in last 3 year.

My Case:
- Employed with the company since 1st April 2013..
- Made business visits to US couple of times in the last one year. During each business visits i stayed around 40 days. (Total of 80 days).
- As of today, i have been with the company for 440 days. 440-80 = 360 days. I will be satisfying 365 days rule by June 20.

My Questions:
- Will business visits also be counted for 1 in last 3 year rule?
- When exactly the 365 days rule is taken into account?
i.e. To start the petition process of L1A (or) The day when we go for PAI
- Any visits to US that is less than 30 days is also counted?

Thanks.

Based on my interpretation of the below judgments and statements I believe you should be fine. As for 365 Days, if it is L1A Blanket then the date you got for visa interview. If it is L1A Individual, the day when USCIS received the petition. Advisable to keep a few weeks buffer.

http://www.justice.gov/eoir/vll/intdec/vol14/2148.pdf

http://www.uscis.gov/outreach/notes-previous-engagements/uscis-american-immigration-law-association-aila-october-meeting

5. COUNTING PERIODS OF TIME ABROAD FOR L-1 ELIGIBILITY

Recent USCIS L-1 adjudications depart from the long-held and applied interpretation of the requirement that an employee of a qualifying petitioner must have been employed for one of three years prior to seeking admission to the U.S., and that authorized periods of stay in the U.S. do not interrupt that year. The AFM states the following at Ch 32.3(b):

“The alien must have been employed abroad by the foreign operation for at least one of the last three years. Such one year of employment outside the U.S. must have been continuous. Although authorized periods of stay in the United States for the foreign employer are not interruptive of the prior year of employment, such periods may not be counted towards the qualifying year of employment abroad. See Matter of Kloeti, 18 I&N Dec. 295.”

See also Matter of Continental Grain Company, 14 I&N 140 (time in the U.S. in H-3 trainee status does not interrupt period of employment). See also INA §101(a)(15)(L).

Accordingly, it is well-established that if, for example, an employee who worked for Company A in Japan for more than one year is transferred to the U.S. to work for its subsidiary, Company B, in E status, that employee qualifies to change to L status at a later time if he or she then works for Company A or a qualifying affiliated company. The time spent inside the U.S. working for the company does not affect the eligibility for L status so long as prior to admission in E or another nonimmigrant status, the employee met the one year employment abroad requirement.

Contrary to the AFM, precedent decisions and long practice, USCIS now states that only time in the U.S. in L status, rather than any “authorized periods of stay in the United States for the foreign employer” does not interrupt the prior year of employment.

AILA requests that USCIS issue guidance to examiners reaffirming the principles found in binding precedent and the AFM.

Response: USCIS agrees that periods spent in the United States in a lawful nonimmigrant status authorizing such employment for a branch of the same employer or a parent, affiliate, or subsidiary thereof (and brief trips outside of the United States for business or pleasure while in such capacity) shall not be interruptive of the one year of continuous employment abroad requirement. As long as the alien remains lawfully employed in a valid nonimmigrant status – whether or not in nonimmigrant L classification - by an otherwise qualifying entity within the United States having the requisite qualifying relationship with the foreign entity abroad, and further provided that there has been no intervening employment with a non-qualifying entity since arriving in the United States, USCIS will consider the three-year clock to have stopped with respect to the foreign employment requirement, even if more than three years have lapsed since the alien was last employed abroad with the affiliated entity.

This is my opinion not legal advice.