A controversial requirement in Department of State (DOS) guidance toconsular officers, updated in March 2020, is the new “clearly approvable”standard for the adjudication of blanket L visa applications frompetitioners seeking classification of multiple workers as intracompanytransferees, cited by DOS as based on Department of Homeland Securityregulations. This new standard has immigration attorneys scratching theirheads.
New ‘Standard’ is Anything But
Applicants individually bear the burden of proof, even in blanket Lsituations, to show that they are entitled to L-1 classification, but the“clearly approvable” standard does not seem to be legally defined anywhere.In a meeting with the American Immigration Lawyers Association in spring2019, DOS reportedly said that “clearly approvable” is a legal standardhigher than “preponderance of the evidence” but less than “clear andconvincing.” Well, that certainly clears things up!
Among other things, the Foreign Affairs Manual states that if anofficer has “any doubt” whether an applicant has fulfilled their burden ofproof, “you must deny the visa.” Presumably to instill confidence in theconsular officer, the manual includes vague hints such as noting thatconsular officers overseas “benefit from cultural and local knowledge,making it easier to spot misrepresentations in qualifications.” If, basedon the applicant’s documentation, the officer has a “reasonable basis” forbelieving that the applicant has not provided sufficient proof ofapprovability, the manual continues, the officer may give the applicant theopportunity to respond to questions or issues “that may be quickly oreasily resolved during the interview. However, if the questions or issuescannot be resolved during the interview, then you should deny the case.”The new standard seems clear as mud and destined to produce widely varyinginterpretations depending on the officer. What could possibly go wrong?
The manual also states that if the officer determines that the applicant isineligible for L classification under a blanket petition, the decision isfinal and the applicant may not reapply using the same blanket petition.The reason for denial the officer should record, the manual says, is “NCA”or “not clearly approvable.” “If you find that the beneficiary does notfulfill the qualifications for L classification under a blanket petition,you must deny the visa,” the manual states, noting that the officer shouldnot send blanket L petitions back to U.S. Citizenship and ImmigrationServices (USCIS) for reconsideration or possible revocation. So it’sone-and-done for purposes of the blanket petition. The employer maycontinue to seek L classification for the individual by filing a separate,individual petition with the USCIS Service Center having jurisdiction overthe area of intended employment but must indicate on the petition thereason why the blanket L visa was denied for that individual and mustspecify the consular office that denied the visa and the date of thedecision.
Validity, Purpose, and Qualifications for a Blanket L Petition
An approved blanket L petition is valid initially for a period of threeyears and may be extended indefinitely thereafter. The manual notes thatthe blanket petition provision is meant to serve “only relatively large,established companies having multi-layered structures and numerous relatedbusiness entities. Such companies usually have an established program forrotating personnel and, in general, are the type of companies for which theL nonimmigrant classification was created.” DOL notes that the criteria toqualify for blanket petitions “are formulated to exclude small andnonprofit organizations.”
The blanket petition provision is available only to managers, executives,and specialized knowledge professionals who are destined to work in anestablished office in the United States (i.e., aliens seeking to open or beemployed in a “new” office do not qualify). Those who possess specializedknowledge, but who are not specialized knowledge professionals, must obtainL-1 status through an individual petition.
Consular officers verify the qualifications of individuals seeking Lclassification under the blanket petition provision and who are outside theUnited States and require visas to enter. They make several determinationson an individual basis, including whether the individual is a manager,executive, or specialized knowledge professional employed by a qualifyingorganization, and whether the applicant has the requisite employment withthe organization abroad for 12 months within the previous 3 years. Thosequalifying as rendering services in a capacity involving specializedknowledge must qualify as a specialized knowledge professional.
Tips for Employers
- As the burden of proof is on the applicant during the visa interview,impressing the consular officer is paramount. Applicants should bewell-prepared with documentation. Practitioners advise speaking withthe applicant to help them prepare for the interview by working out inadvance, or even practicing, how they will explain the job duties andtheir qualifications in meeting the criteria. They should speak duringthe interview with conviction and confidence. Any hesitations or fearsthe applicant has should be asked about and addressed in advance whenpossible.
- L-1A applicants should be prepared to explain how they will manage anycritical company functions as a part of their position and how manypeople they will be managing, and should include the budget for theirteam, if available, and their salary.
- L-1B applicants should be prepared to explain their profession and thespecifics of how they developed the expertise required to be a memberof that profession and how that expertise is to be applied to the jobduties. They should be able to provide examples of their specializedknowledge and any proprietary aspects of their company and itsprocesses about which they are knowledgeable. They also need to be ableto explain why they are needed in the United States, for example,because nobody else in the U.S. office is similarly knowledgeable orexperienced.
As COVID-19 restrictions and suspensions have greatly limited visaprocessing, it remains to be seen how the new “clearly approvable”requirement will be implemented in practice. A presidential proclamationalso suspended L visa issuance through December 31, 2020.
