A policy memorandum issued by United States Citizenship and Immigration Services (USCIS) in mid-November 2018, was supposed to clarify L1A intra-company transfer visa rules. However, it appears that the memorandum – dated November 15, 2018 – has failed to clarify certain L1 visa regulations.
Sanwar Ali workpermit.com comment:
The US visa system is probably the most complex in the World. The US L1 visa requires more documentary evidence (unless you are a very large company and meet the requirements for blanket filing) than probably any other intra-company transfer visa anywhere in the World. In addition, even if you provide huge quantities of documentation it is still quite likely that you will be sent a Request for Further Evidence (RFE) and be asked for even more documentation.
In particular, current L1A visa rules stipulate that brief trips to the US for business or pleasure should not interrupt the required 12-month continuous period of employment abroad. However, existing L1A visa regulations fail to define ‘brief’. Unfortunately, the memorandum issued in November 2018 does little to clarify the matter.
USCIS policy memorandum 602-0167 states:
- All visa requirements must be satisfied as of the date the USCIS receives an L1 visa petition
- Employees must be based outside the US for the mandatory one continuous year of employment
- In certain cases, time spent in the US will not break the continuity required, but that time will not be counted towards the compulsory 12-month period
L1 Visa Memorandum lacks clarity on time spent outside US
The memorandum does contain an example suggesting that time spent outside the US totalling 60 days during a 12-month period, constitutes a ‘brief trip’. However, what it fails to clarify is if the continuity rules apply to one trip of 60 days, two trips of 30 days or three trips of 20 days etc…
This lack of clarification means that the situation regarding L1A visa regulations has neither improved nor worsened since the memorandum was issued.
Meanwhile, the memorandum appears to be clarifying rules that didn’t require further explanation. For example, current L1 visa laws state that ‘only days when the employee is physically outside the US may be counted towards the required one continuous year of employment.’
However, the policy memorandum states that time spent in the US working for a qualifying organization does not count, but this is already made clear by existing rules. Nevertheless, USCIS has updated Chapter 32.3 of the Adjudicator’s Field Manual, somewhat pointlessly, to ‘clarify’ the rules.
Equally, the policy memorandum reiterates that a visa petitioner must meet all legal requirements at the time the petition is filed. However, this has been a longstanding rule, which is why L1 petitions could never be filed before an employee completed the full 12 months of employment abroad as they would not meet the legal requirements.
An excerpt from the memorandum reads: “This memorandum applies, and will be used, to guide determinations by all US Citizenship and Immigration Services (USCIS) employees when adjudicating I-129 petitions for the L1 classification.”
While the policy memorandum does not create a new law or result in a change in policy, its purpose of clarifying existing rules seems to have resulted in further confusion.
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