The US state department, in its updated guidelines for processing of ‘blanket’ L visa applications, has informed its consular officers that visa aspirants must demonstrate their eligibility by ‘clear and convincing evidence’.
The Foreign Affairs Manual , which provides such guidance, was updated on November 4. Now, applications can be denied by consular officers in instances where questions about the applicant’s eligibility cannot be resolved quickly in the visa interview. Immigration attorneys told TOI that subjectivity could creep into the entire process of adjudication. There would be greater scrutiny, and higher denial rates.
L-1 visas enable an employer to quickly and effectively transfer their executives or managers from a foreign office (say in India) to the US office. It also enables a company to send a manager across for the purpose of setting up an office in the US. An L-1A visa is granted to managers and executives, whereas the L-1B visa is for professionals with specialised knowledge. Recent years have seen increasing scrutiny of L-1 applications — the revised guidance is expected to exacerbate this trend. The approval rate for L-1 visas has been on the decline (see graphic). In fiscal 2015 (12-month period ended September 30, 2015), as many as 33,454 L-1 visas were approved with a success rate of 84%. The approval rate declined to 72% in fiscal 2019 with only 29,335 approvals being granted.
Under the ‘blanket’ application route, a single application can be filed by a large company having overseas operations, which eliminates the need to file a separate L-1 application for each employee the company wishes to transfer to the US office. After approval of the blanket application, the employee concerned had to present a copy of the approval notice, with the required form and other evidence (such as of proof of employment) to a US consular officer for obtaining the L-1 visa . In India, the US consulate office in Chennai deals with L-1 petitions under the blanket approval route.
“The ‘blanket’ application route has been a very useful tool for large companies — particularly in the IT sector — based in India, seeking to transfer executives, managers and individuals having specialised knowledge to the US,” Neil A Weinrib, founder and managing attorney of a New York-based law firm, told TOI. Commenting on the updated guidance, he said, “It is a radical departure and could certainly lead to unfair adjudications as consular officers are typically vested with enormous discretion and very limited oversight. Further, there is no real recourse to the applicant in the event of a visa denial.”
An in-house immigration expert attached to an IT company said, “Medium and large Indian tech companies mainly rely on H-1B visas, and to a lesser extent on L visas. Typically, L-1visas constitute 10-15% of the H-1B visas procured in a year. Yet, the revised guidance is a cause for concern.”
Weinrib summed up: “I would strongly advise the applicants to be intimately familiar with the entire L-1 visa petition — as well as their specific title, role and job description — in order to best withstand the potential queries.”