AAO Designates Adopted Decision, Clarifying That A Beneficiary Who Worked Abroad For A Qualifying Multinational Organization For At Least One Year, But Left Its Employ For A Period Of More Than 2 Years After Being Admitted To The U.S. As A Nonimmigrant, Does Not Satisfy The One-In-Three Year Foreign Employment Requirement

AAO Designates Adopted Decision, Clarifying That A Beneficiary Who Worked Abroad For A Qualifying Multinational Organization For At Least One Year, But Left Its Employ For A Period Of More Than 2 Years After Being Admitted To The U.S. As A Nonimmigrant, Does Not Satisfy The One-In-Three Year Foreign Employment Requirement For EB-1 Classification As A Multinational Manager Or Executive. To Cure The Interruption, The Beneficiary Needs An Additional Year Of Qualifying Employment Abroad.

On March 19, 2018, the Administration Appeals Office (AAO) designated this opinion as an Adopted Decision, establishing policy guidance for USCIS personnel. Petitioner had filed an EB-1C I-140 seeking to classify an employee as a multinational manager or executive, i.e., an executive or managerial capacity employee who had worked abroad for one year in the three years preceding the filing of the petition or the employee’s admission to work for the Petitioner as a nonimmigrant.

The Nebraska Service Center (NSC) denied the I-140 on the ground that the Petitioner had not employed the Beneficiary abroad for at least one of the three years preceding his nonimmigrant entry into the U.S. to work for the Petitioner. The NSC cited an interruption of four years between “the Beneficiary’s foreign employment with the Petitioner’s affiliate and his U.S. employment with the Petitioner,” refusing to consider the three year period preceding the Beneficiary’s earlier entry to work for the Petitioner, because he had subsequently worked for an unrelated U.S. employer for several years before returning to Petitioner.

Petitioner appealed to the AAO, claiming that the Beneficiary had performed qualifying work for its overseas affiliate before initially entering the U.S. to work for Petitioner years before, maintaining that “the regulations do not preclude a post-entry interruption in employment as long as the Beneficiary is working for the Petitioner as a nonimmigrant at the time of filing the EB-1 petition.”

Initially, the AAO noted that in the I-140 context under INA §203 (b)(1)(C), if a beneficiary is outside the U.S. at the time of filing, the petitioner must demonstrate that his or her one year of qualifying foreign employment occurred within the three years immediately preceding the filing of the petition; where the beneficiary is already working for the petitioner or a related qualifying entity in the U.S at the time of filing, stated the decision, the petitioner must prove that the one year of foreign employment occurred in the three years preceding his or her entry as a nonimmigrant.

Here, the Beneficiary had been working for Petitioner in the U.S. in L-1A status and Petitioner therefore had to show that Beneficiary’s foreign employment occurred in the three years preceding his entry into the country. The issue is whether USCIS should look at the three years preceding his initial entry to work for Petitioner or the three-year period preceding his entry to work for Petitioner “after an extended period of employment with a different U.S. employer.”

The Beneficiary had worked abroad for Petitioner’s affiliate for over one year, then entered the U.S. in January 2008 to work for Petitioner, a job he left in September 2010. He then worked with an unrelated U.S. employer from April 2011 to July 2014, departed the U.S., and returned in September 2014 to his current job with Petitioner, who filed the I-140 two months later.

The NSC found that “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 to commence employment with the Petitioner in September 2014, because of the intervening years spent working for an unrelated company.”

The AAO disagreed with the Petitioner’s assertion that the relevant three year period was prior to the Beneficiary’s 2008 entry, stating that under this interpretation anyone 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 EB-1C 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.” The statute and regulations, held the AAO, sever eligibility for such classification for one who is outside of the U.S. if there was an interruption in employment with the qualifying organization “for more than two years during the three years prior to filing” the I-140.

Thus, concluded the AAO, one who worked as a manager or executive for a qualifying multinational entity for at least one year but then left the organization for more than two years, is ineligible for EB-1C classification; to cure the interruption, he or she would need an additional year of qualifying employment abroad. Although the AAO agreed with the Petitioner that work with a different U.S. employer would not automatically disqualify such a beneficiary, a break in qualifying employment of over two years interrupts the continuity of employment with the petitioner’s organization. As the Beneficiary was not employed for at least one year abroad by a qualifying entity between September 2011 and September 2014, he is ineligible for EB-1C classification and the appeal was dismissed. Matter of S-P-, Inc., Adopted Decision 2018-01 (AAO Mar. 19, 2018).