Nuances of the L-1 Category: Employment Abroad and Limit on Status
L-1 work authorization is available to individuals who have worked on a full-time, continuous basis for at least one year of the last three years preceding the filing of the petition. The beneficiary must have been employed with a foreign corporation with a parent, subsidiary, branch or affiliate in the U.S. The individual must hold an executive or managerial position (L-1A), or work in a specialized knowledge capacity (L-1B).
Qualifying Employment Abroad
The requirement that the beneficiary has “continuous employment abroad for a one full-time year within the last three years preceding the filing of the petition” raises many intricate issues.
Employment calls for an actual employer-employee relationship as typically understood by an employer’s legal, payroll and tax obligations. Occasionally, however, independent contractors may qualify for L-1 status if it can be proven that the contractor was exclusively working for an affiliated company, and that he/she was, in fact, in a managerial/executive position or possesses specialized knowledge. This requires a very complex analysis and thorough documentation.
Continuous suggests that any interruption of employment breaking the legal employer/employee relationship before a full year of employment has been completed would re-start the period of eligibility.
One (full-time) year essentially means a 365-day period of “full-time” employment as commonly understood. Regulations do not permit adding together periods of employment for less than one year or part-time employment to establish eligibility.
Abroad, as a qualifying term, literally requires that the prospective beneficiary has been physically outside the U.S. during the requisite qualifying year. However, brief, casual periods of time in the U.S. during that year (B-1/B-2 entries) do not necessarily interrupt qualifying employment abroad.
Limit on Status
The limitation on an L-1 foreign national’s stay in the U.S. is set by regulation at a maximum, unbroken period of seven (7) continuous years for L-1A managers and executives, and five (5) years for L-1B specialized knowledge employees.
However, any time a beneficiary spends physically present outside the U.S. may be “recaptured” at the end of his/her status cap for additional time. This extension petition requires clear and convincing proof in the form of arrival and departure records (travel log, I-94 record, tickets) and other evidence supporting a beneficiary’s time spent outside the U.S. (credit card statements and tax records).
Additional time beyond the 5/7 year cap may also be granted for beneficiaries who reside abroad and periodically commute to the U.S. for work, or for beneficiaries whose employment in the U.S. is seasonal or intermittent. Total time spent in the U.S. for work purposes must be an aggregate of six (6) months or less per year. These petitions also require clear and convincing documentation of physical presence outside the U.S.
Note that any time spent in the U.S. in L-1 status also counts against the six (6) year cap on H-1B status. There is a one (1) year foreign residence – i.e. physical presence abroad – requirement which must be met before a foreign national who has been in the U.S. in L-1A or L-1B status for 5 or 7 continuous years, respectively, is eligible for readmission to the U.S. again in L-1 (or H-1B) status.