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Article: Blanket L-1 Intracompany Transfers—’Clearly Approvable’ Standard is Clear as Mud By Wolfsdorf Rosenthal LLP

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  • Article: Blanket L-1 Intracompany Transfers—’Clearly Approvable’ Standard is Clear as Mud By Wolfsdorf Rosenthal LLP

    Blanket L-1 Intracompany Transfers—’Clearly Approvable’ Standard is Clear as Mud

    by


    A controversial requirement in Department of State (DOS) guidance to consular officers, updated in March 2020, is the new “clearly approvable” standard for the adjudication of blanket L visa applications from petitioners seeking classification of multiple workers as intracompany transferees, cited by DOS as based on Department of Homeland Security regulations. This new standard has immigration attorneys scratching their heads.

    New ‘Standard’ is Anything But

    Applicants individually bear the burden of proof, even in blanket L situations, 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 spring 2019, DOS reportedly said that “clearly approvable” is a legal standard higher than “preponderance of the evidence” but less than “clear and convincing.” Well, that certainly clears things up!

    Among other things, the Foreign Affairs Manual states that if an officer has “any doubt” whether an applicant has fulfilled their burden of proof, “you must deny the visa.” Presumably to instill confidence in the consular officer, the manual includes vague hints such as noting that consular officers overseas “benefit from cultural and local knowledge, making it easier to spot misrepresentations in qualifications.” If, based on the applicant’s documentation, the officer has a “reasonable basis” for believing that the applicant has not provided sufficient proof of approvability, the manual continues, the officer may give the applicant the opportunity to respond to questions or issues “that may be quickly or easily resolved during the interview. However, if the questions or issues cannot be resolved during the interview, then you should deny the case.” The new standard seems clear as mud and destined to produce widely varying interpretations depending on the officer. What could possibly go wrong?

    The manual also states that if the officer determines that the applicant is ineligible for L classification under a blanket petition, the decision is final 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 not fulfill the qualifications for L classification under a blanket petition, you must deny the visa,” the manual states, noting that the officer should not send blanket L petitions back to U.S. Citizenship and Immigration Services (USCIS) for reconsideration or possible revocation. So it’s one-and-done for purposes of the blanket petition. The employer may continue to seek L classification for the individual by filing a separate, individual petition with the USCIS Service Center having jurisdiction over the area of intended employment but must indicate on the petition the reason why the blanket L visa was denied for that individual and must specify the consular office that denied the visa and the date of the decision.

    Validity, Purpose, and Qualifications for a Blanket L Petition

    An approved blanket L petition is valid initially for a period of three years and may be extended indefinitely thereafter. The manual notes that the blanket petition provision is meant to serve “only relatively large, established companies having multi-layered structures and numerous related business entities. Such companies usually have an established program for rotating personnel and, in general, are the type of companies for which the L nonimmigrant classification was created.” DOL notes that the criteria to qualify for blanket petitions “are formulated to exclude small and nonprofit organizations.”

    The blanket petition provision is available only to managers, executives, and specialized knowledge professionals who are destined to work in an established office in the United States (i.e., aliens seeking to open or be employed in a “new” office do not qualify). Those who possess specialized knowledge, but who are not specialized knowledge professionals, must obtain L-1 status through an individual petition.

    Consular officers verify the qualifications of individuals seeking L classification under the blanket petition provision and who are outside the United States and require visas to enter. They make several determinations on an individual basis, including whether the individual is a manager, executive, or specialized knowledge professional employed by a qualifying organization, and whether the applicant has the requisite employment with the organization abroad for 12 months within the previous 3 years. Those qualifying as rendering services in a capacity involving specialized knowledge 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 be well-prepared with documentation. Practitioners advise speaking with the applicant to help them prepare for the interview by working out in advance, or even practicing, how they will explain the job duties and their qualifications in meeting the criteria. They should speak during the interview with conviction and confidence. Any hesitations or fears the applicant has should be asked about and addressed in advance when possible.
    • L-1A applicants should be prepared to explain how they will manage any critical company functions as a part of their position and how many people they will be managing, and should include the budget for their team, if available, and their salary.
    • L-1B applicants should be prepared to explain their profession and the specifics of how they developed the expertise required to be a member of that profession and how that expertise is to be applied to the job duties. They should be able to provide examples of their specialized knowledge and any proprietary aspects of their company and its processes about which they are knowledgeable. They also need to be able to explain why they are needed in the United States, for example, because nobody else in the U.S. office is similarly knowledgeable or experienced.

    As COVID-19 restrictions and suspensions have greatly limited visa processing, it remains to be seen how the new “clearly approvable” requirement will be implemented in practice. A presidential proclamation also suspended L visa issuance through December 31, 2020.

    This post originally appeared on Wolfsdorf Rosenthal LLP. Reprinted with permission.


    About The Author

    Wolfsdorf Rosenthal LLP is a full-service, top-rated immigration law firm providing exceptional immigration and visa services. With over 30 years of experience and offices in Los Angeles, New York, Oakland, San Francisco, Santa Monica, and Shanghai, the firm specializes in providing global immigration solutions for investors, multinational corporations, small businesses, academic and research institutions, artists and individuals. Wolfsdorf Rosenthal attorneys are experts in their field and are featured contributors and speakers at local, national and global immigration forums and publications. They are also consistently recognized for their work and honored by the most prestigious awards on a national and global level.


    The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.

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