Mr. G, the president of a multinational company (MNC), wanted me to explore immigration options for a prospective employee (KG).
KG is an international student at a U.S. institution, currently in the Optional Practical Training phase of his degree, who works for the branch of the MNC in the U.S. Mr. G wants KG to immediately join the U.S. branch of the MNC as a Manager, and it looked feasible because prior to entering the U.S. in July 2015, KG had been an executive-level employee, for a period of one-year, at an affiliate of the MNC in Singapore.
Since this period of employment was within three years of being admitted to the U.S., a change of status petition would have been possible because pursuant to INA Section 214(c)(2) , an otherwise eligible foreign national may be classified as an L-1 nonimmigrant if, “within 3 years preceding the time of his application for admission into the United States, [the foreign national] has been employed continuously for one year by a firm or corporation or other legal entity or an affiliate or subsidiary thereof…and seeks to enter the United States temporarily in order to continue to render his services to the same employer or a subsidiary or affiliate thereof in a capacity that is managerial, executive…” INA Section 101(a)(15)(L).
However, the regulation at 8 CFR 214.2(i)(3)(iii) requires the qualifying employment to have been full-time and having occurred “within the three years preceding the filing of the petition.”
The USCIS recently issued a policy memo clarifying the reference point for determining the one-year foreign employment requirement. The USCIS’ policy memo tries to reconcile whether qualifying employment ought to have occurred at the time of admission (in some cases in a different nonimmigrant status), or the filing of the nonimmigrant petition on Form I-129.
Unfortunately for KG, the memo eliminates the possibility of being able to change to L-1 status. This is because, according to the memo,
“Periods of employment with the qualifying organization in the United States as a dependent or student do not result in an adjustment of the three-year period for purposes of determining whether the beneficiary has met the one-year continuous foreign employment requirement.” (Emphasis added.)
Further, the memo states:
“if a beneficiary was admitted as an F-1 nonimmigrant and later applies for optional practical training (OPT) employment with the qualifying organization, the time spent in F-1 nonimmigrant status will not result in an adjustment to the three-year period, because the purpose of admission was for study and not to work “for” the qualifying organization. Moreover, this would not change even if the qualifying organization financed the F-1 nonimmigrant’s studies. In neither of these instances should the three-year period be adjusted.”
The memo goes on to clarify that periods of employment in the United States for the petitioning organization may not be used to satisfy the requirement.
So, the fact that KG is currently an employee of the U.S. company doesn’t help his cause. From an outside perspective, with the unemployment rate being so low and American businesses seeming to have a hard time finding employees, it sure seems a bit shortsighted.
The memo makes it clear that the one-year foreign employment requirement, where the beneficiary must demonstrate continuous employment abroad for one year out of the three preceding years, must be met at the time that the petitioner files the L-1 petition.
The USCIS has effectively eliminated nonimmigrants currently in the U.S. in L-2 and H4 EAD, or F-1 OPT from qualifying for a change to L-1 status, because it does not consider them to have come to this country to work “for” the qualifying organization.
In this case, KG’s two plus year break in employment due to his study in the U.S., during the three years preceding the filing of the L-1 petition, will render him unable to meet the one-year foreign employment requirement.
His only chance to return to work for the U.S. organization in L-1 status, would require him to first leave the U.S. and rejoin a “qualifying organization” abroad for a one-year period. This is not a welcome change in policy for nonimmigrants who would otherwise qualify for an L-1. By limiting eligibility, the USCIS has effectively eliminated certain eligible nonimmigrants from filing for this sort of change of status.
Businesses should be concerned about this change in policy, and should reach out to their congressional members and request they use their oversight power to ask USCIS why this more restrictive policy has been implemented. Another option is to reach out to your local universities and see if they’d be willing to partner in amplifying this issue which could impact their foreign student interest and enrolment.
Yes, this is yet another acronym-heavy, legalese-sounding issue, but it is another brick in the invisible wall as well. We need to highlight these policies and tear down the wall or families, businesses, and universities will suffer. Our shared prosperity will suffer. Whether you are an immigration lawyer, or a client, a business leader or a staffer on the Hill – raise these questions and speak up!