Beyond a doubt: New State Department guidance may increase blanket L visa refusal rates
On March 30, the State Department published new Foreign Affairs Manual (FAM) guidance for consular officers that changes the standard of proof for blanket L adjudications and is likely to increase the refusal rate for multinational companies with blanket L visa programs.
The previous guidance advised consular officers that L-1 visa adjudications based on blanket petitions should be determined on the basis of the “preponderance of evidence.” The revised FAM now places a higher burden on applicants, requiring them to demonstrate eligibility beyond a doubt. The new language instructs consular officers: “If you have any doubt whether an applicant has fulfilled his or her burden of proof, you must deny the visa.” 9 FAM 402.12-8(F).
The new guidance appears to be in line with the directives from the Trump administration to increase the restrictions on issuance of employment-based visas, both under the “Buy American and Hire American” executive order, which called for “rigorous enforcement” of immigration provisions relating to workers, and the “extreme vetting” directive on visa applications in the March 6, 2017 White House Memorandum “to rigorously enforce all existing grounds of admissibility and to ensure subsequent compliance with related laws after admission.”
As a result of these directives, companies have experienced a marked decline in L approvals, especially at U.S. consulates in India, where the number of L-1 visas issued declined from 51,981 to 41,523 from fiscal year 2016 to 2019—a 20% drop.
The new guidance not only increases the burden of proof—it may also make it harder for applicants to overcome consular officer concerns over visa eligibility. The new instructions give consular officers discretion over whether to even allow the applicant to present new evidence, and require that any new evidence be presented in the first visa interview, which would preclude consular officers from allowing the applicant to return in a later interview with new evidence:
If based on the applicant’s documentation, you have a reasonable basis for believing that the applicant has not provided sufficient proof that his or her application should be approved, you 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 per 9 FAM 402.12-8(G).
This is not the first time the State Department has attempted to strengthen standards for blanket L petitions. Last October, it quietly inserted language into the FAM that replaced the “preponderance of the evidence” standard with a “clear and convincing evidence” standard, but it withdrew this change the following month. This time, the department has come out with even stronger language, further raising the stakes for companies and requiring they prove visa eligibility to a near certainty. Companies that rely on blanket L visas to move personnel to U.S. operations should consult counsel to ensure that applications meet this new standard and to strategize around the likelihood of higher denial rates.
Jeffrey Gorsky is Senior Counsel in the Washington, D.C., office of Berry Appleman & Leiden LLP.
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