This appeal was fully successful
The AAO sustained the appeal, finding that the Beneficiary's qualifying 'entry as a nonimmigrant' occurred on August 12, 2013, when he began working primarily in the United States, not on his first-ever L-1A entry in February 2011. Under this interpretation, the Beneficiary met the one-year foreign employment requirement.
A software company filed an EB-1C petition to permanently employ a Beneficiary as an IT client services and engineering manager. The Nebraska Service Center denied the petition, concluding that the Beneficiary had not accrued one year of qualifying foreign employment in the three years preceding his initial L-1A entry on February 6, 2011. The AAO reversed, finding that the regulatory phrase 'entry as a nonimmigrant' should be interpreted as the date the Beneficiary began working primarily in the United States—August 12, 2013—because prior to that date he was based abroad, making only brief intermittent visits to the U.S. under his L-1A status. Applying this interpretation, the Beneficiary had over one year of qualifying managerial employment abroad in the three-year period preceding August 2013. This decision provides important guidance on how to count the one-year foreign employment period for beneficiaries who transitioned from intermittent U.S. visits to full-time U.S.-based employment.
What worked: The Beneficiary's detailed travel records were decisive, showing he spent 87% of his time abroad during the prior L-1A period and made only brief visits to the U.S. The AAO accepted a purposivist reading of the regulation that tied 'entry as a nonimmigrant' to when the Beneficiary actually began primarily working in the United States rather than his technical first entry date.
What failed: The Director's strict reliance on the date of the Beneficiary's first L-1A entry was rejected as inconsistent with the statute's purpose of facilitating intracompany transfers of senior talent, especially where that entry was for only intermittent visits while the employee remained primarily based abroad.
Takeaway: For EB-1C cases where a beneficiary held L-1A status but was primarily based abroad making only brief U.S. visits, petitioners should argue that the qualifying 'entry as a nonimmigrant' is the date the beneficiary began working primarily in the United States, and document the employee's travel records, place of residence, and primary worksite to support this argument.
Cases like this are frequently used by attorneys when responding to RFEs or building initial petitions. The evidence patterns that worked (or failed) here directly reflect what USCIS officers look for when evaluating EB-1C criteria.
● Evidence that moved the needle
- The Beneficiary's detailed travel records were decisive, showing he spent 87% of his time abroad during the prior L-1A period and made only brief visits to the U.S
- The AAO accepted a purposivist reading of the regulation that tied 'entry as a nonimmigrant' to when the Beneficiary actually began primarily working in the United States rather than his technical first entry date.
● Evidence that wasn't enough alone
- The Director's strict reliance on the date of the Beneficiary's first L-1A entry was rejected as inconsistent with the statute's purpose of facilitating intracompany transfers of senior talent, especially where that entry was for only intermittent visits while the employee remained primarily based abroad.
Arrival and departure records showing the Beneficiary made only 17 brief trips to the United States between February 2011 and August 2013, with the longest visit lasting 12 days and a total of only 117 days in the U.S. over approximately 2.5 years.
Evidence that the Beneficiary spent 87% of his time (801 out of 918 days) working for the Petitioner's affiliate outside the United States during the intermittent L-1A period.
Record evidence substantiating the managerial nature of the Beneficiary's employment abroad from August 2010 to August 2013.
Evidence that the Beneficiary was promoted to the U.S.-based position and began primarily working in the United States as of August 12, 2013.
The Director's conclusion that the three-year lookback period ran from February 2008 to February 6, 2011 (the date of the Beneficiary's initial L-1A entry), which the AAO found inconsistent with the statute's purpose.
The Director incorrectly defined 'entry as a nonimmigrant' as the Beneficiary's first-ever L-1A entry on February 6, 2011, even though that entry was only for intermittent, brief visits while the Beneficiary was primarily based abroad.
The Director's interpretation would have excluded a beneficiary who had effectively not yet begun primarily working in the United States, contrary to the statute's purpose of facilitating transfer of senior talent within multinational organizations.
Completed
I-140 filed
IT client services and engineering manager at a software company
Completed
Director — Denied
Initial decision: Denied.
Completed
Appeal to the AAO
Petitioner appealed to the Administrative Appeals Office for de novo review.
2017-07-19
AAO decision — Sustained
The AAO sustained the appeal, finding that the Beneficiary's qualifying 'entry as a nonimmigrant' occurred on August 12, 2013, when he began working primarily in the United States, not on his first-ever L-1A entry in February 2011. Under this interpretation, the Beneficiary met the one-year foreign employment requirement.
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