The USCIS “One-in-Three-Year” Rule is closely examined as one of the bright-line requirements during L-1A and EB-1C visa classification determinations. The rule requires the petitioner in L-1A and EB-1C petitions to demonstrate that the beneficiary worked at least one year for a qualifying foreign employer in a managerial or executive capacity and that one year of employment must have occurred within the three years immediately preceding the filing of the petition.

The USCIS One-in-Three-Year Rule catches prospective L-1A and EB-1C petitioners and beneficiaries off guard because it requires delicate timing and planning. Ignoring this rule can result in a delay. The impact may last several months or even years because it can disqualify the beneficiary even if all of the other requirements are met. If the One-in-Three-Year Rule is not met, the beneficiary will usually need an additional year of qualifying employment abroad before he or she could once again qualify.

While the rule may be strict, USCIS carved out an exception in April 2018 for certain EB-1C petitioners and beneficiaries. In April 2018, USCIS released a policy memorandum on an adopted decision based on Matter of S-P-, Inc. Adopted Decision 2018-01 (AAO Mar. 19, 2018). In Matter of S-P-, Inc., the Administrative Appeals Office (AAO) clarified while typically the One-in-Three-Year Rule applies to petitions where the beneficiary is applying from outside of the United States, it may not apply to beneficiaries applying inside the United States who are on a nonimmigrant visa working for a United States employer with a qualifying relationship.

According to the AAO, “[Immigration and Nationality Act] is silent with regard to those key personnel who have already been admitted to the United States in a nonimmigrant classification. In promulgating the implementing regulations, the former Immigration and Naturalization Service concluded that 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.”

For example, a parent India corporation in 2017 transfers its President to the United States under the L-1A visa classification to its subsidiary United States corporation. While in the United States, the President develops the United States corporation. After four years in 2021, the company decides to petition the President under an EB-1C visa classification. While the traditional One-in-Three-Year Rule disqualifies the President because more than three years have passed since the President worked for the parent India entity, the exception in Matter of S-P-, Inc. protects the President because the President has been in the United States working for the subsidiary United States company uninterrupted while on a nonimmigrant L-1A visa.

In this situation, USCIS will still review the President’s EB-1C petition, but instead of reviewing the three years preceding the EB-1C petition submission (2018-2021), USCIS will review the three years prior to the President receiving their L-1A visa classification (2014-2017). The AAO in Matter of S-P-, Inc. explained that “both the statute and the regulations focus on the continuity of the beneficiary’s employment with the same multinational organization. This is not inconsistent with the purpose of the intracompany transferee visa classification, which is to facilitate the international transfer of multinational businesses’ key personnel.”

The AAO clearly saw that the USCIS One-in-Three-Year Rule defeats the purpose of the statute when it disqualifies multinational businesses’ key personnel who are in compliance with the intent of the statute. Those that are in this situation may be urged to seek out the assistance of an attorney to see if their employment history still qualifies them for the EB-1C classification. For more information, please contact our knowledgeable staff at International Legal and Business Services Group, LLP.

EB-1C immigration USCIS One-In-Three-Year Rule