Over the summer, the State Department updated its manual on blanket L-1 visa processing at consulates, instructing visa officers that a blanket L application should be denied if the officer has “any doubt whether an applicant has fulfilled his or her burden of proof.” This update to the manual is a significant change from the instructions in 2019, which applied a “clear and convincing evidence” standard.

The burden of proof during a consular visa interview has always been on the applicant and their employer to provide the necessary information that will allow the officer to decide that the L-1 qualification has been met and issue the visa. However, the standard applied by the officer is important, as it could make the difference between approval and denial of an application, based on the same set of documents and interview responses. Under the previous “clear and convincing” standard, the applicant needed to provide enough proof to make the L-1 qualification “highly probably or reasonably certain.” Under the new standard, officers only need a “reasonable basis” for believing the applicant has not provided enough proof in order to deny the application. In other words, the new standard gives consular officers much more discretion and leeway to deny a blanket L-1 visa application.

Furthermore, the new standard gives little opportunity for any doubts to be resolved through providing of additional documents or information after the interview. In the past, a consular officer might issue the applicant a 221(g) administrative processing notice if s/he felt the application was not clearly approvable during the interview itself. Through the 221(g) response, the employee and/or sponsoring employer could provide additional documents and information to clarify the applicant’s eligibility for the visa. However, under the new standard, officers are required only to “give the applicant the opportunity to respond to questions or issues that may be quickly or easily resolved during the interview.” If the issue cannot be clarified by the applicant during the interview, the officer is not obligated to request further documents and can deny the application based only on the interview.

This new standard was added to the consular officers’ manual in June 2020. Because most visa interviews at U.S. consulates have been suspended since March, and new L-1 interviews have been suspended under the Presidential Proclamation since June, the details of how this new standard will be applied, in practice, largely remains to be seen. However, because consulates have begun phased resumption of visa services, and because a number of exceptions to the Presidential Proclamation have recently been clarified, we may start seeing the new rule being applied as employees begin scheduling appointments based on blanket L-1 petitions.

How to Prepare

Avoid the consulate if possible

For individuals who already hold L-1 status pursuant to a blanket L petition, the preferred method of extending L-1 status may be for the company to file an I-129 petition with USCIS. Doing so allows the employee to remain in the U.S., avoiding not only a more difficult interview, but also avoiding potentially risky travel and unpredictable appointment scheduling at the consulate. Current blanket L-1 visa holders should consult with their employer and attorney to determine the best strategy for their renewal.

Practice for the interview

If applying through the consulate is unavoidable (for new applicants, or to cure a maintenance of status issue), it is highly recommended that applicants be thoroughly familiar with their application, and be prepared to answer detailed questions during the interview. Relying solely on the document packet or the employer support letter will no longer be sufficient – if officers are seeking to resolve any inconsistencies “quickly and easily” during the interview, the burden will be on the employee applicant to clearly and succinctly articulate their eligibility for the visa. This can include describing the company hierarchy and where they fit in, the number of employees they manage, the nature of their direct reports’ positions, why their knowledge is specialized, how their expertise will be applied, and the crucial nature of their position in the U.S. company, depending on whether they are classified as an L-1A manager/executive or L-1B specialized knowledge employee.

Applicants may find a “mock interview” with an attorney over the phone or via video conferencing helpful in their preparation, to receive specific advice on what elements of their applications and personal qualifications to emphasize, and how to navigate potentially difficult questioning from a visa officer. To schedule a consultation with one of our attorneys to prepare for a visa interview, click here.

By: Rebecca Chen

Rebecca is a partner and senior practice manager at Reddy & Neumann and represents clients in employment-based nonimmigrant and immigrant visa cases. She advises clients throughout the visa application process, from initial filing, responding to various requests for evidence, and processing at overseas consulates.