A policy memorandum sent to U.S. Citizenship and Immigration Services (USCIS) employees on November 15, 2018, could make it harder for some Canadians to get L-1 visas allowing them to work in the United States as intra-company transferees.
The L-1 status allows executives, managers and specialized knowledge employees from foreign countries to work in the U.S. for up to three years. To qualify, the individual seeking entry to the U.S.—the beneficiary—must have worked abroad in a similar capacity for a related company for a period of one continuous year out of the three years preceding the filing of the L-1 petition.
The policy memorandum clarifies how USCIS officers should determine whether this requirement has been met when applicants who have been living in the U.S. under a different non-immigrant status are applying to have their status changed to L-1. This should be of particular concern to Canadian businesses with operations in the U.S., as it could make it harder for some of their employees to get L-1 visas.
When an L-1 applicant has an H1-B or E-2 visa
If a Canadian working in the U.S. under an H-1B (specialty occupation worker) or E-2 (executive) visa applies for L-1 status, the USCIS policy memorandum directs officers to move back the three-year period used to determine whether the applicant satisfies the one-year foreign employment requirement.
For example, if a person with an E-2 visa has been working in the U.S. since January 2, 2017, and applies for L-1 status on January 2, 2018, USCIS officers should look at the three-year period of January 1, 2014, to January 1, 2017, to determine whether the applicant meets the one-year requirement.
When an L-1 applicant has an L-2 or F-1 visa
Canadians who have been living in the U.S. with an L-2 (dependent spouse) or an F-1 (student) visa do not enjoy the same benefit of having the three-year period moved back, even if they have been working in the U.S. for the qualifying organization on the L-1 petition. If such persons apply to have their status changed to L-1, USCIS officers are instructed to look at the three-year period immediately preceding the filing of the L-1 petition to determine whether the one-year foreign employment requirement has been met.
This, the policy memorandum emphasizes, is because the L-1 classification is reserved for an applicant who seeks “to enter the United States temporarily in order to continue to render his or her services to a branch of the same employer or a parent, subsidiary or affiliate thereof” (emphasis added by USCIS). This definition excludes people with L-2 or F-1 visas, since they would not have entered the U.S. for the specific purpose of continuing to render services for their employer. L-2 visa holders are admitted to the U.S. to join an L-1 principal, and F-1 visa holders are admitted to study.
Brief trips to the United States
The memorandum also explains that brief trips made to the U.S. for business or pleasure under B-1 or B-2 visas will not interrupt an L-1 applicant’s one year of continuous employment abroad, but the days spent in the U.S. will be tolled on top of the one-year requirement. For example, if an applicant was employed abroad for the duration of 2016 but travelled to the U.S. on business for a total of 20 days that year, he or she would need to accrue an additional 20 days of qualifying employment abroad in 2017 to meet the one-year foreign employment requirement.
Periods of time spent in the U.S. without working, or working for a different employer
If an L-1 applicant spent a period of time in the U.S. without working, or working for an employer other than the qualifying organization on the L-1 petition, USCIS officers are instructed not to adjust the three-year period to determine whether the one-year foreign employment requirement has been met. If the applicant takes a break in employment with the qualifying organization for a period of more than two years, it will be impossible for him or her to meet the one-year requirement.
Tightening of the U.S. border
This is not the first time a policy memorandum from USCIS has signalled a possible tightening of the U.S. border (see “The Uncertain Tide of U.S. Immigration”), and it may now be more difficult for some Canadians to obtain L-1 visas. If you are considering sending your personnel to the U.S. to work as executives, managers or specialized knowledge employees, contact your legal counsel to discuss your options.
Note: This article is of a general nature only and is not exhaustive of all possible legal rights or remedies. In addition, laws may change over time and should be interpreted only in the context of particular circumstances such that these materials are not intended to be relied upon or taken as legal advice or opinion. Readers should consult a legal professional for specific advice in any particular situation.