Satisfying the L-1 visa one year requirement

By Jessica Suotmaa 0

In November 2018, the United States Citizenship and Immigration Services (USCIS) issued a policy memorandum on satisfying the one year abroad requirement for L-1 visa beneficiaries. This policy memorandum is internal to the agency and cannot be used to justify a beneficiary’s qualification for L-1 visa (L-1A and L-1B Temporary Intracompany Transferee).  Regardless, the policy does clarify many of the questions regarding the one year requirement. For your future reference, we have summarized the highlights of this recent announcement:

1. When does the one year period of employment abroad have to be met?

The one year work abroad minimum requirement has to be met on the day your petition is filed with USCIS.

For L-1, you are required to have worked for your company for a full year (365 days), continuously, within the last three years.  There cannot be any gaps in employment. You must have worked outside of the United States. Any business trips your company sent you on to the United States do not count towards the 365-day rule. Your company cannot petition for you before you have met the 365-day requirement.

2. Do my U.S. business trips count towards my one year requirement?

No, they do not.  If you have only been employed by your company for 365 days and you have made trips to the U.S, you do not meet the one year requirement.  The reason is that the time spent in the U.S., even if for business, do not count towards your one year requirement.  Business trips do not “break” your period of continuous employment abroad, but they do not add to it either.

For example, if today is February 1, 2019 and you began working for your company on February 1, 2018, but you took two trips to the U.S. in 2018: the first in July 2018 when you stayed for 14 days and the second in December 2018 when you stayed for 30 days.  On February 1, 2019, you do not meet the one year abroad requirement.  You will need to add the number of days you were in the United States to your total in order to calculate when you will meet this minimum requirement.  In this example, you would add the following:

February 1, 2018-February 1, 2019 = 365 days + 14 days + 30 days = 409 days

February 1, 2018 + 409 days = March 17, 2019

In other words, your company can file your L-1 petition after March 17, 2019.

3. What if I currently have H1-B or E-2 visa status with my company but I used to work abroad for the same company?

If you currently have H1-B or E-2 visa status, you still have to meet the 365-day foreign employment requirement. However,  your valid H1-B or E-2 temporary visa in the United States pushes back the “look back period” for foreign employment.

For example, if your company has obtained an H1-B visa for you for the past two years, from January 1, 2017 to January 1, 2019, but now your company would like to apply for your L-1 visa.  The “look back period” is usually three years from the date of the petition. However, since you are working for the same company and in a qualifying capacity (executive, supervisor, or special skill employee), your “look back period” will end the day you obtained your H1-B visa.  This means you will have had to accrue 365 days of foreign employment with your company from January 1, 2014 to January 1, 2017 instead of January 1, 2016 to January 1, 2019.

Please note that the H1-B or E-2 visa sponsor would have to be the same company as your L-1 sponsor.

4. What if my company sponsored my masters studies in the U.S. and now wants to sponsor my L-1 visa?

To meet the time qualifications for L-1 visa, you need to have 365 days of continuous foreign employment outside of the United States within the last three years.  The three-year period, or “look back period”, is not affected by your studies in the U.S.

What this means is that if you expect to graduate from your U.S. masters program in May 2019 and your company decides to prepare and file your petition on or around May 2019, then you will have had to have worked for that same company in a foreign country for 365 days between May 2016 and May 2019.  This period cannot include periods of time when you held a valid F-1 visa or were stationed in the U.S. It cannot include any “optional practical training” (OPT) that you completed with your company as the purpose of your stay as a F-1 visa recipient was to study, not work.  Any period in which you held a valid F-1 visa and were located in the U.S. cannot count towards your 365-day employment requirement.

5. What if I entered the U.S. with an L-2 visa and now want to change status to L-1?

Similarly to an F-1 visa situation, an L-2 visa recipient enters the U.S. as a tag-along to the L-1 visa recipient it is attached to and thereby is not authorized to work in the U.S.  This means that the three year “look back period” is not adjusted and your visa status is not exempt.  You would have to have accrued 365 days of valid foreign employment with your current company within the last three years in order to qualify.

5. What if I stopped working for this company or worked for another company for a while?

If you stopped working for a period of time, or you worked for an unrelated employer within the three year “look back period”, it is possible you do not have enough time to meet the 365-day time accrued working abroad requirement.

For example, if you were working for your company from January 1, 2014 to December 31, 2016, but then worked for another company in the U.S. or somewhere else in between, and then maybe stopped working for a while before your company decided to recruit you for your present position, you need to carefully calculate the total number of days you have worked for this company.  The three year look back period in March 2019 would extend until March 2016. Since you stopped working at the company in December 31, 2016, you would only have nine months of continuous employment within your look back period.  Even though you have worked for your company abroad for over a year, you do not have enough days to meet the one year requirement for L-visa sponsorship.

6. What does “continuous employment” mean in this context?

Continuous employment with your company is defined as nonstop employment for the same company. This means that you cannot have worked for your company for 4 months in 2016, taken a few months break, and then worked another 8 months later in the year. It does not matter whether the 4 months and 8 months of employment add up to 12 months. It also does not matter if they took place during your three year “look back period”.  Your 12 months of employment with your company must not have any gaps or breaks. You cannot work for an unrelated company in between and expect to add the time together for the one year requirement.

Please note that to meet this requirement you may have to produce proof.  Evidence of continuous employment can include employment contracts, employment visas (if relevant), and pay stubs.

 

Do you have additional questions about the one year requirement for L-1 visa petitions? Schedule an appointment or give us a call today!

3 New Changes for H1-B Filers in 2019

By Jessica Suotmaa 0

Here at Lum Law Group, we have already begun preparing H1-B petitions on behalf of our clients.  If you plan on filing this year, do not wait till mid-March (it might be too late!) Contact our office for answers and assistance on filing your H1-B petition this year!

On January 31, 2019, DHS has issued the  final H1-B ruling. on the anticipated H1-B processing changes.  On January 31, 2019, USCIS published the final H1-B ruling.

1. Having a U.S. Master’s Degree Helps

USCIS’ new “reverse selection order” will apply to the upcoming FY 2020 filing season. If you’re unsure as to what the word “reverse” refers to, here’s how the random visa selection used to work:

  1. Select 65,000 from a pool of advanced degree exempt “regular” bachelor’s degree holders.
  2. Select 20,000 from a pool of master’s degree holders.

Here’s how the current selection will work:

  1. Select 65,000 from a pool that includes both “regular” bachelor’s degree and advanced degree holders.
  2. Select 20,000 from a pool that includes the remaining master’s degree holders.

The selection order reversal will increase the chances of a advanced degree holder to “win” the H1-B lottery by an estimated 16%, and decrease the chances for a bachelor’s degree only employee to be selected.

2. Early Elimination via Pre-registration

The new pre-registration requirement will require the employer (company) petitioning for employees to first register the employee electronically.  The electronic registration will be quick and easy, requiring only basic information such as the employee’s name, citizenship, passport number, job title, and whether the employee has a U.S. master’s degree.

But, it will only be open for a limited period of time, possibly only 14 days (the minimum). During this time, petitioners can delete an inaccurate registration and resubmit, as well as edit a registration prior to submission.

USCIS will then select from pre-registered petitioners. What this means is that many will be rejected at the pre-selection process and not allowed to join the H1-B visa lottery selection.

USCIS states the purpose of pre-registration is to reduce the number of H1-B petitions it receives, screen for duplicates, and to reduce H1-B fraud and not for eligibility purposes. However, the inclusion of a “U.S. Master’s Degree” in the pre-selection process suggests USCIS may prefer U.S. master degree holders over other pre-registrations.

3. H1-B Filing More Affordable

The new rule goes in-depth on the cost analysis of the new implemented changes to H1-b non-immigrant visa processing. The report analyzes both agency savings and petitioner savings.  Where previously petitioners would have to hire someone, either in-house or external, to prepare Foreign Labor Certificate and the entire Form 129 – H1-B Specialty Occupation Worker, the pre-registration would reduce the cost of trying.  A failed pre-registration screening will result in the petitioner saving significant amounts of money in preparation fees and USCIS filing fees.

In addition, many small businesses who did not have the budget to apply for H1-B given it’s high-entrance cost and risk of failure can now more readily join the lottery.

 

Now that we’ve highlighted the three key takeaways from the new H1-B rule, you might wonder about premium processing? On January 28th, 2019, USCIS published a press release stating it will resume premium processing cap H1-B petitions for FY 2019.  Please contact us if you have any questions regarding this issue.

 

How to ace your L-1 visa interview

By Jessica Suotmaa 0

If your employer has successfully applied for your L-1 employer visa, you may be scheduled for an interview at the nearest U.S. embassy/consulate. Whether you have experience interviewing for a US tourist visa and know the drill, or it’s your first time and you’re incredibly nervous, we have tips to help you better prepare for what to expect.

Be Prepared

Nothing builds confidence like good preparation, and knowing what to expect at the interview is key.  If your company hired an external company to prepare your L-1 visa application, be sure to obtain a copy of the full application, any supplemental documents/evidence that was submitted, and any issues that may have arisen in the process.  Review the file thoroughly and know that there may be questions directly relating to your application.

If you don’t know where to start asking questions, be sure you know the organizational structure of your local company, where your local company stands in relation to the larger company, and how the U.S. subsidiary company is structured.  You should be able to comfortably place yourself in the organizational chart and explain all roles both above and below you.

Be Confident

The consulate or embassy can be a stressful place, depending on where you’re located.  Some locations have such high security that you cannot bring anything with you to keep you occupied, or for additional support, and other locations are much more relaxed.  Certain locations may be crowded with long lines and heavy waiting with random people, which can affect your stress levels if you’re not careful.  Be aware of why you’re there, ignore everyone around you, and most importantly, remember that the denied individuals in front of you will not affect your interview.

Be Truthful

While we encourage every applicant to be confident, we don’t encourage our clients to lie.  Be prepared, know your company and your role well, and answer honestly. If you make a mistake, apologize, correct yourself, and continue. Do not over-explain. Always stick to answering the question and follow up when necessary, but do not go on tangents providing unnecessary information.

Tip: If a question has multiple questions in one, think of them as A), B), and C) stems. Make a mental note, repeat the mental note to the interviewer, and then answer the questions in the order they were asked.

Example:

What is the process in your company to hire and fire an employee and have you had the opportunity to hire or fire anyone before? If so, when did you last fire someone?

A) Company’s process of hiring and firing employees

B) Have I hired/fired anyone?

C) When did I last fire someone?

Then you’d answer: “So you’re asking me for the (A) company’s process for hiring/firing employees, (B) whether I have hired/fired anyone in my present role, and if so, (C) when I last fired someone?” And then proceed to answer with details that directly address the questions.

If you can, we recommend preparing yourself well by playing out the interview at home via role play, or participating in a mock interview with your HR person. If you work for a large organizations with interview preparation sessions, role play sessions, or information sessions–do participate in them. If not, try asking HR if they can prepare you, about previous L-1 candidates, and what HR can provide you to study in preparation for the interview.

 

If you have additional questions about interviewing for an employment-based visa interview at the consulate or embassy, or immigration questions in general, please contact our office and we would be happy to help you.