I. Summary of the Preceding-Three-Year Requirement

We have discussed the term “application for admission” in a previous article. It is a concept distinct from “request for an immigration benefit” and “application for a visa,” and a process handled by U.S. Custom and Border Protection at the port of entry. The significance of the term for L-1 nonimmigrant lies in the “preceding-three-year” requirement.

U.S. immigration lawsclassify L-1 nonimmigrant as an alien who has aat least continuous one-year employment within three years preceding the time of the application for admission into the U.S.Meanwhile, immigration regulation also requires thata petitioner submitevidence proving L-1 beneficiary has the qualified employment within the three years preceding the filing of the petition.

The latter is a higher bar, because filing a petition usually occurs earlier than applying for admission. Together, the laws create a two-step requirement regarding the employment time span.

The laws, in fact, assumes that an alien lives outside the U.S. when a qualifying employer files an L-1 petition, when the alien applies for L-1 visa, and of course when the alien is leaving for an U.S. port of entry. However, in some circumstances, an L-1 petition is filed for an alien who hasalready admitted into the U.S. with another nonimmigrant visa.

II. Change of a Nonimmigrant Status to L-1

When an L-1 petition is filed for an alien who is staying in the U.S. in another nonimmigrant status, the case becomes a little bit tricky, for the application of admission occurs earlier than request for L-1 benefit. The requirement at the time of filing the petition seems to preclude the eligibility of those who have been staying in the U.S. for a comparatively long period.

However, we can also say that the case become easier, as it involves the USCIS only. USCIS has issued a policy on this matter. In short, it depends on the status based on which the nonimmigrant was admitted and stays in the U.S.

See the following examples:

Carol, David, and Edward are allChinese citizens and have worked as full-time managers at Shanghai Company of ABC Global continuously between February 1, 2022 and January 31, 2023. Then they did not work for ABC Global for some reasons, and they happened to be admitted into the U.S. on February 1, 2025.

Specifically, Carol was admitted in H-1b status, working for the New York Company of ABC Global. David was admitted in F-1 status, working for the New York Company under CPT work authorization. Edward was admitted in B-1 status, representing Shanghai Company visiting the New York Company.

Assuming they meet other requirements, only Carol will be eligible for L-1 status. It is becauseUSCIS views the nonimmigrant as having entered the U.S. for the purpose of working for an eligible employer, if the nonimmigrant is employed by that employerin an employment-based nonimmigrant status.

Here, Carol has been working for the New York Company in an H-1b status. Therefore, when the New York Company file an L-1 petition for Carol, her preceding-three-year period is counted based on the date of admission, February 2, 2025, which meets the requirement.

On the other hand, David did not work for the New York Company in the employment-based status, and Edward just had business visits. If the New York Company wants to file L-1 petitions for them, say on April 1, 2025, their preceding-three-year periods are counted based on the date of filing, and will be from April 1, 2022 to April 1, 2025.

As neither of them worked for the Shanghai Company after February 1, 2023, they do not have a qualified one-year employment required for the L-1 petition.

III. Conclusion

When a qualifying employer files a petition to change of an alien’s status to L-1 status, the USCIS will look at the current status to decide what date the preceding-three-year starts.  If an alien worked in the U.S. in valid temporary employment-based status for a qualifying organization, the preceding-three-year period will be counted based on the date the alien obtained the status. Otherwise, the qualified employment should have happened within three years preceding the date of filing.

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Founded in 1996, Zhang & Associates, P.C. offers legal services to clients worldwide in all aspects of U.S immigration law. We have successfully handled over ten thousand immigration cases.

At Zhang & Associates, P.C., our attorneys and supporting professionals are committed to providing high-quality immigration and non-immigration visa services. We specialize in NIW, EB-1, PERM, I-485 I-130, H-1B, O, L and J cases. In the past over twenty years, we have successfully helped over ten thousand clients get green cards. If you plan to apply for a green card, please send your CV to Attorney Jerry Zhang (info@hooyou.com) for a free evaluation.

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(03/21/2025)