EB1(c) One-in-Three Rule

May 4, 2023

The persistent backlogs in employment-based categories for applicants of certain nationalities are growing, leaving few or no options for those who are waiting in the queue for the Green Card process. As a result, many qualified applicants are facing significant delays and uncertainty in their immigration status, which can be detrimental to both their personal and professional lives. The immigration system needs to be reformed to address these inequities and ensure that qualified applicants from all nationalities have a fair and efficient path to obtaining permanent residency in the United States. However, unless that happens, it is important to see what options are available to some of the employment based visa categories. This article is written to focus on the EB1(c) option.

One of the requirements for qualifying for an EB1(c) position is that the individual must have worked as a manager or executive for a company related to the U.S. petitioning employer for at least one year within the past three years. This is also referred to as the one-in-three rule.

The INA 101(a)(15)(L) requires the beneficiary of an intracompany transferee petition to have been employed continuously by the petitioner, or by an affiliate or subsidiary thereof, for one year within the three years preceding the beneficiary’s application for admission into the United States. However, 9 FAM 402.12-11 (U) QUALIFYING EXPERIENCE REQUIREMENT provides that the proper point for determining the one-year qualifying experience requirement is the date the petitioner files the initial L1 or other employment-based NIV petition (such as an H1B petition) specifically seeking the beneficiary's services to work for a qualifying organization in the United States (the starting point in the applicant's application for admission to enable the beneficiary to work in the United States for the L-1 petition or a qualifying organization). 

9 FAM 402.12-11 (U) clarifies that (i) while not expressly stated in the INA or regulations, INA 101(a)(15)(L) contemplates that the beneficiary’s qualifying experience with the petitioner must have been continuous full-time employment, and not continuous part-time employment. Several years of part-time employment equaling one year in aggregate cannot be viewed as meeting the requirement. Full-time services divided among affiliated companies, each using the employee on a part-time basis, however, constitute full-time employment if the aggregate time meets or exceeds the hours of a full-time position and; (ii) The beneficiary’s one year of qualifying experience with the petitioner must be wholly outside the United States. Time spent working for the petitioning firm in the United States does not qualify.

Time spent in the United States working for the foreign employer or a parent, branch, affiliate, or subsidiary thereof, and brief trips to the United States for business or pleasure, do not interrupt the continuity of the one year of continuous employment abroad for L-1 status, but do not count toward fulfillment of that requirement. Such periods spent in the United States may follow the year of employment abroad and immediately precede application for L-1 status, so long as the required one year of qualifying employment during the past three years has been served abroad. Time spent in the United States as a dependent--for example, as an L-2 or E dependent spouse-- does not count as working "for" the qualifying organization.

If the beneficiary spends time working for the qualifying organization in the United States (for example, as an H-1B for the same organization), this will result in an adjustment of the three year period when determining the one-year foreign employment requirements. A beneficiary has worked for the qualifying organization if they are employed as the principal beneficiary of an employment-based nonimmigrant petition or application (such as H-1B or E-2). For example, if the beneficiary worked for the qualifying organization in the United States from January 2, 2017, to January 2, 2018, as an H-1B nonimmigrant, and the petitioner filed an L-1 petition on the beneficiary's behalf on January 2, 2018, the relevant three-years will be from January 1, 2014, to January 1, 2017. The time a beneficiary spent working while in dependent status or as a student pursuant to Optional Practical Training (OPT) will not result in an adjustment of the three year period.

It is important to note that the employment with the U.S. petitioner must be continuous and not interruptive. 

In the Matter of S-P-, Inc., which was an adopted decision issued on March 19, 2018, the Administrative Appeals Office clarified that a beneficiary who worked abroad for a qualifying multinational organization for at least one year, but subsequently left their employment for a period exceeding two years after entering the United States as a nonimmigrant, would not meet the one-in-three foreign employment requirement for immigrant classification as a multinational manager or executive. Notably, the AAO stated that to remedy the interruption in employment, the beneficiary would need an additional year of qualifying employment abroad to regain eligibility for this classification.

After the adoption of this decision by AAO, USCIS issued a Policy Memo (PM-602-0158) on March 19, 2018, providing guidance to all USCIS employees on how to make determinations in similar cases by following the reasoning outlined in the adopted decision. It was again on November 15, 2018 that USCIS issued another Policy Memo (PM-602-0167) clarifying (i) that the proper reference point for determining the one-year foreign employment requirement is the date the petitioner files the initial L-1 petition on the beneficiary’s behalf, the starting point in the alien’s application for admission in L-1 status; (ii) periods of time in the United States not working or working for an unrelated employer do not result in an adjustment of the three-year period during which the beneficiary must have been continuously employed for one year abroad and; (iii) time the beneficiary spent working “for” the qualifying organization in the United States results in an adjustment of the three-year period for determining whether the beneficiary has met the one-year foreign employment requirement.

In the Matter of S-P-, IncThe Petitioner was a manufacturer of tissue paper products, who sought to permanently employ the Beneficiary as a technical director-product development and plant manager under the first preference EB-1 immigrant classification for multinational executives or managers. See Immigration and Nationality Act (the Act) § 203(b)(1)(C), 8 U.S.C. § 1153(b)(1)(C). 

USCIS’s Nebraska Service Center denied the petition and affirmed that decision in a subsequent motion to reconsider. USCIS’s basis of denial was an interruption of approximately four years between the Beneficiary’s foreign employment with the Petitioner’s affiliate and his U.S. employment with the Petitioner. 

The Beneficiary in this case was working for the Petitioner as an L-1A nonimmigrant and, therefore, the Petitioner was required to show that his foreign employment occurred in the three years preceding his entry to the United States. The Beneficiary had worked in a qualifying capacity for the Petitioner’s affiliate company in Indonesia for more than one year, until January 2008, when he first entered the United States to work for the Petitioner. He worked with the Petitioner in the United States until September 2010 when he joined the employment of 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 immigrant petition in November 2014. The Director of Nebraska Service Center had declined to look at the three-year period preceding the Beneficiary’s earlier entry to work for the Petitioner in 2008, because the Beneficiary had later worked for an unrelated U.S. employer for several years prior to returning to work for the Petitioner in 2014. On appeal, AAO disagreed with the Petitioner’s argument under 8 C.F.R. § 204.5(j)(3)(i)(B) that the relevant three-year period was prior to the Beneficiary’s first nonimmigrant entry in 2008, and that a subsequent change of U.S. employers does not disqualify the Beneficiary from the immigrant classification that the Petitioner seeks on his behalf. AAO said that under the Petitioner’s interpretation of 8 C.F.R. § 204.5(j)(3)(i)(B), any beneficiary who had worked as a manager or executive for a qualifying entity abroad for one year during the three years preceding entry would remain eligible indefinitely for immigrant multinational classification, as long as he or she was initially admitted to work for the multinational organization and eventually returned to its employ prior to filing the immigrant petition. A single non immigrant entry to work for the Petitioner does not permanently qualify a beneficiary for EB-1 classification, regardless of the passage of time and changes of employment that occur after that entry. AAO said that statutes and regulations must be read as a whole, and interpretations should be consistent with the purpose of the Act.

See 8 C.F.R. § 204.5(j)(3)(i)(A); 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 petition. See 8 C.F.R. § 204.5(j)(3)(i)(B); If the beneficiary is already working in the United States for the petitioner, 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.  

The relevant period during which a beneficiary must have had one year of managerial or executive employment abroad is the three years “preceding the time of the alien’s application for classification and admission into the United States under this subparagraph.” See Section 203(b)(1)(C) of the Act. As AAO noted, the statute is silent with regard to those key personnel who have already been admitted to the United States in a nonimmigrant classification. It was not the intent of Congress to disqualify nonimmigrant managers or executives who have already been transferred to the United States to work within the same corporate organization. See 56 Fed. Reg. 30,703, 30,705 (July 5, 1991). Thus, the regulation at 8 C.F.R. § 204.5(j)(3)(i)(B) allows USCIS to look beyond the three-year period immediately preceding the filing of the I-140 petition, when the beneficiary is already working for a qualifying U.S. entity. 

It is thus that AAO said that the beneficiary would need additional qualifying employment abroad, adding up to at least one year during the three years prior to filing, before a U.S. petitioner could file an EB-1 petition on his or her behalf. 

Therefore, it is crucial to thoroughly evaluate each case under the EB-1(c) one-in-three rule to avoid unfavorable determinations by USCIS or on appeal. Taking this precautionary step can help ensure a successful outcome for applicants seeking permanent residency through the EB-1 visa program.

[Please note that the information provided in this blog is for general informational purposes only and should not be construed as legal advice. Every legal case is unique and should be evaluated based on the relevant laws and regulations applicable to that specific situation].

Vijay Bhagwati, Esq.

Founder and Managing Partner