Written by attorney Brian David Lerner

L-1 Specifics on Continuous Employment

The provision in the INA that the alien beneficiary of an intracompany classification must have been employed continuously for one year by a firm or corporation or other legal entity or an affiliate or subsidiary thereof, has raised some interesting questions. For example, what about a beneficiary who has been employed by the foreign entity for more than one year, but the one year period was interrupted by a lengthy training period in the United States? The legacy INS has held that where the last seven months immediately preceding the application were spent with the foreign entity, although such period was immediately preceded by a 28-month training period in the United States, the applicant qualified for nonimmigrant intracompany transferee status, since prior to the 28-month training period in the United States he had worked in a "specialized knowledge" capacity with the foreign entity for over one year. In other words, the one year's continuous employment must be wholly outside the United States, although during portions of that one-year period the beneficiary may spend some time in the United States, such as training periods, conferences, and the like.The regulations provide that periods spent in the United States in lawful status for a branch of the same employer or a parent, affiliate, or subsidiary thereof and brief trips to the United States for business or pleasure are not interruptive of the one year of continuous employment abroad, but such periods will not be counted toward fulfillment of that requirement. Thus, periods spent in the United States in any authorized capacity on behalf of the foreign employer neither interrupt nor contribute to the required one-year period. Such periods spent in the United States may follow the year of employment abroad and immediately precede application for L status, so long as the required one year of qualifying employment during the past three years has been served abroad. An intracompany transferee must have the required one year of experience at the time of filing the nonimmigrant petition on his or her behalf.

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