DOS Defines Legal Standard for L-1 Petitions Filed Under Blankets
Background on Blanket L-1 Petitions
An L-1 “blanket” petition is a single petition that can be approved for certain large, multinational companies, eliminating the need to file an individual L-1 petition for each employee that the company wishes to transfer to the United States in L-1 status. The qualified employee of a company with an approved blanket petition applies directly at a U.S. consulate for the L-1 visa based on the blanket petition approval and with proof of appropriate prior employment with the company abroad.
Standard of Proof
When filing an individual petition with the U.S. Citizenship and Immigration Services (USCIS), the petitioner has always been required to establish by a “preponderance of the evidence” – that is, more likely than not – that the beneficiary qualifies for the particular visa benefit. A petition filed under an L-1 blanket, on the other hand, uses a higher “clearly approvable” legal standard. While the DOS has never defined exactly how to determine when a case is “clearly approvable,” it signaled to stakeholders that the consular officer must be able to quickly review the evidence during the relatively brief consular interview to ascertain eligibility. If a more thorough review was necessary, it would have to be filed (or re-filed) as an individual L-1 petition with the USCIS.
Foreign Affairs Manual Updated with Definition of “Clearly Approvable”
The FAM now provides that “clearly approvable” means that the applicant must provide “… clear and convincing evidence of his or her eligibility.” The FAM goes on to note that this standard “… requires enough proof to make something highly probable or reasonably certain.”
The DOS apparently borrowed the “clear and convincing” legal standard from U.S. civil litigation, which uses this as an intermediate standard, between the lower “preponderance of the evidence” standard used in most civil cases and the higher “beyond a reasonable doubt” legal standard required in most criminal proceedings. It is difficult to determine what practical implications this change to the FAM will have. But, given the Trump Administration’s track record when it comes to immigration matters, it is difficult to imagine this will be used to the benefit of multinational companies seeking to transfer needed foreign national employees to the United States.