The “One-in-Three” Rule

U.S. Citizenship and Immigration Services (USCIS) has released a policy memorandum (PM-602-0158) providing guidance on the EB-1C immigrant visa category, specifically the “one-in-three” rule. Just for some background, the EB-1C category enables multinational managers and executives who have been employed outside the U.S. for at least one year to immigrate to the U.S. to continue to render managerial or executive services to the same employer or to its subsidiary or affiliate. If the beneficiary is outside the United States at the time of filing, the “one-in-three” rule applies. That is, the petitioner must demonstrate that the beneficiary’s one year of qualifying foreign employment occurred within the three years immediately preceding the filing of the EB-1C petition. 
Alternatively, if the beneficiary is already working in the United States for the petitioner (L-1 status), or its affiliate or subsidiary, at the time of filing, the petitioner must demonstrate that the beneficiary’s year of foreign employment occurred in the three years preceding his or her entry as a nonimmigrant. 
Policy Memo (PM-602-0158)
The newly released policy memo adopts the Administrative Appeals Office’s (AAO) decision in Matter of S-P-, Inc. In that case, the Beneficiary worked in a qualifying capacity for the Petitioner’s affiliate in Indonesia for more than one year prior to entering the United States as an L-1A nonimmigrant in January 2008. He then ceased employment with the Petitioner in September 2010, and his next documented employment was with an unrelated U.S. employer from April 2011 to July 2014. Thereafter, the Beneficiary departed the United States, but he returned in September 2014 to work for the Petitioner. The Petitioner then filed the EB-1C immigrant petition in November 2014. The Director determined that the Petitioner did not establish that the Beneficiary had been employed abroad for at least one year during the three years preceding his entry to the United States because of the intervening years spent working for an unrelated company.
At issue in Matter of S-P-, Inc. was whether USCIS should look at the three-year period preceding the Beneficiary’s initial entry to work for the Petitioner in 2008, or the three-year period preceding his entry to work for the Petitioner after an extended period of employment with a different U.S. employer. Ultimately, the AAO determined that a beneficiary who worked as a manager or executive for a qualifying multinational organization for at least one year, but who then left the organization for a period of more than two years, is ineligible for EB-1C immigrant visa classification. The AAO went on to say that in order to cure the interruption in employment, such a beneficiary would need an additional year of qualifying employment abroad before he or she could once again qualify.
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