The immigration regulations allow employees of large, multinational corporations that have an approved L-1 blanket petition, to apply directly at U.S. Consulates abroad for L-1 intra-company transfer visas to the U.S. This has been a fast, cost effective, and often times, easier and preferred method for employees who qualify to be transferred to the U.S. in L-1 nonimmigrant status. The standards for L-1 blanket adjudication at the U.S. Consulate have now been changed and seem to have become even stricter than for those seeking L-1 status through individual petitions filed with the U.S. Citizenship and Immigration Service (USCIS) - their standards have in practice also become tougher over the last 2 to 3 years, despite no recent regulatory changes.
The Consular L-1 adjudication process is detailed in the Foreign Affairs Manual (FAM), which includes a new, heightened adjudication standard for blanket L-1 applications.1 This is a higher standard than articulated in the prior FAM section, which stated only that the application must be "clearly approvable." The revised provision directs the Consular Officer to deny the L-1 visa if he/she "has any doubt" whether an applicant has established their L visa eligibility and if the "questions or issues cannot be resolved during the interview." This is different than the former meaning of "clearly approvable", which has been the longstanding standard for blanket L adjudications and has been interpreted to mean that the applicant needs to provide clear and convincing evidence of eligibility for the L-1 visa, or documentation that makes the purported fact "highly probably or reasonably certain."
Interestingly, the term "clearly approvable" remains in the revised FAM section. However, previously, the consular officers could issue an INA 221(g) refusal (aka administrative processing) notice and give the applicant an opportunity to submit further documentation to resolve the issue. The new FAM section may eliminate this practice, as it states that the Officers "must deny the visa" if the issue cannot be resolved at the visa interview. This is especially important, as U.S. Consulates around the world are beginning to reopen, and many potential or existing employees of large U.S. companies would likely be applying for blanket L visas at U.S. Consulates abroad in the coming months. This also means that the applicant's L-1 visa interview preparation will be crucial for the case outcome, given that this provision allows the Officers to deny the visa if they are not satisfied with the applicant's answers and the application presented at the interview.
The alternative to consular filing is the filing of an L-1 individual petition with the USCIS, where the adjudication standard is "preponderance of the evidence" - i.e., the petitioner must establish that it is more likely than not - that the beneficiary qualifies for the particular immigration benefit. However, USCIS filings are generally more expensive, take longer and have, as indicated above, been subject to more scrutiny and requests for evidence, including more denials, in the past few years.
Given the anticipated increased scrutiny of blanket L applications at U.S. Consulates and the current USCIS adjudication climate, it is critical for employers and individuals to work closely with their immigration counsel to determine the best filing strategy for success, after careful analysis of the individual case circumstances.
Footnotes
1 See 9 FAM 402.12-8, available at https://fam.state.gov/fam/09FAM/09FAM040212.html#M402_12_8_F
Disclaimer: This Alert has been prepared and published for informational purposes only and is not offered, nor should be construed, as legal advice. For more information, please see the firm's full disclaimer.
