USCIS Issues Guidance on L-1 One-Year Foreign Employment Requirement
The United States Immigration and Citizenship Services (USCIS) issued a policy memorandum, effective immediately, providing guidance on how it will calculate qualifying employment abroad when adjudicating a foreign national’s eligibility for L-1 intracompany transferee temporary worker status. With limited exceptions, an L-1 applicant must now be employed abroad by a qualifying L organization for one continuous year within the three years before the filing of the employer’s initial L-1 petition.
This is the first time USCIS has provided comprehensive guidance on how a foreign national can meet the one-year of continuous foreign employment requirement necessary for L-1 status. Before this memo, USCIS issued interpretations, sometimes calculating the “one year within three years” requirement from the date of admission to the United States, regardless of what status that admission was in, and sometimes calculating it from the date of the filing of L-1 petition. The most important points are that the L-1 beneficiary must be physically outside the United States during the required one continuous year of employment, except for brief trips to the United States for business or pleasure, which do not interrupt the one continuous year of abroad employment. These trips will toll the one year clock, adding time that must continue to be spent in qualifying employment abroad. The memo only mentions trips in B-1 or B-2 status as non-interruptive of the one-year continuity; it is unclear how brief trips in other types of status with the L employer during the qualifying period might be treated with respect to continuity. Time spent in the U.S. by a foreign national as the
principal beneficiary of an employment-based nonimmigrant petition for a qualifying L employer will be treated differently for determining whether the foreign national has met the one-year foreign employment requirement. In these instances, USCIS will look to the date upon which the foreign national was initially admitted to work for the qualifying organization rather than the date of the L-1 petition filing.
In addition the memo also addresses periods of employment with the L qualifying organization in the U.S. as a student or a dependent. This will not result in an adjustment of the three-year period for the purposes of determining whether the foreign national has met the one-year continuous foreign employment requirement. The dependent or student must have had the qualifying foreign employment within three years of the initial L petition filing. It also address period of unemployment or employment unrelated to the L qualifying employer.
New LCA Form Issued For Key Nonimmigrant Classification
The Labor Condition Application (LCA) Form, ETA 9035, is a required form for non-immigrant visa categories including the H-1B, H-1B1 (Chile/Singapore) and E-3 (Australia). The Department of Labor’s plans to better protect American workers, confront fraud, and increase transparency, and as issued a new version of the LCA form which took effect on Nov. 19, 2018. This form includes several new key revisions: (1) Disclosing all places of employment for H-1B workers, including periods of
short duration; (2) Providing the estimated number of H-1B workers at each place of intended employment; (3) Requiring the clear identification of secondary entities who are using H-1B workers; and (4) Requiring H-1B dependent employers who are claiming an exemption solely on the basis of education, such as a master’s degree, to provide documentation of the degree. It is recommended that all U.S. employers revisit and review their contracts in place for third-party placement of their own employees as well as their vendor agreements, which may place workers at third party locations.
USCIS Announces All Offices Will be Closed on December 5, 2018
President Trump declared Wednesday December 5
th as a national day of mourning to remember the life and legacy of George, H.W. Bush, the 41 st president of the United States.
9 th Circ. Refuses to Revive Trump’s Asylum Proclamation
The Ninth Circuit refused to issue an emergency stay on a lower court ruling that blocked the Trump administration’s rule stripping asylum eligibility from migrants who cross the southern border outside of a designated port of entry.
The government had appealed a California federal judge’s Nov. 19 decision to issue the temporary restraining order against the rule nationwide and to instruct the administration to revert to its asylum practices before the rule was implemented. The appeals court will also weigh the government’s petition for a stay pending appeal this week. The motions before the appeals court were filed under seal.
Congress to Pass Spending Stopgap Before this Weekend
Congressional leaders announced Monday they would pass a two-week continuing resolution for funding parts of the federal government, punting a divisive spending and immigration debate to right before Christmas.
The continuing resolution, filed by Appropriations Committee Chairman Rep. Rodney Frelinghuysen, R-N.J., would avoid a partial federal government shutdown Friday and set a new funding deadline of Dec. 21. The short-term measure follows weeks of negotiation over President Donald Trump’s demand of $5 billion for a wall on the United States-Mexico border, and allows time for respects to be paid to the late former President George H.W. Bush in Washington D.C. this week.
Congress and the administration had passed into law funding for most of the government before the start of the fiscal year Sept. 30. That left funding for the departments of Agriculture; Commerce, Justice, Science, Treasury, Commerce, Homeland Security, Interior, State, Transportation, and Housing and Urban Development to be worked out by Friday.
The bill filed Monday includes a continuation of funding for most of those government agencies, with the addition of several tax programs.
DHS and DOL Propose Modernizing Recruitment Requirements for
H-2B Employers to Protect U.S. Workers
Both the Department of Homeland Security (DHS), and the Department of Labor (DOL) published a joint notice of proposed rulemaking (NPRM) that would modernize the recruitment requirements for employers seeking H-2B nonimmigrant workers to make it easier for U.S. workers to find and fill these open jobs. The H-2B program allows U.S. employers or U.S. agents who meet specific regulatory requirements to bring foreign nationals to the United States to fill temporary nonagricultural jobs. The proposal rule would require electronic advertisements to be posted replacing the often outdated print newspaper advertisements that regulations currently require.