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DOS changes position on L1 blankets
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The U.S. Department of State (DOS) has advised American Immigration Lawyers Association (AILA) that it has reevaluated its previous view and, together with USCIS, has come to the view that only those who were already in L-1 classification prior to 6/6/05 are grandfathered with respect to qualifying with only 6 months' employment. We reproduce the text of the email received by AILA from DOS below:

Text of email from DOS

"As indicated in my April 7 e-mail, both the Visa Office and USCIS/OCC continued to examine the issue of Congressional intent regarding section 413(b) of Public Law No. 108-447 with respect to applicants for L-1 visas under a blanket petition approved prior to June 6, 2005. This process has resulted in the interpretation that follows, which has been cleared within both agencies:

We have consulted with the Office of Chief Counsel (OCC) at USCIS on the issue of whether an applicant for an L-1 visa under a blanket petition filed prior to June 6, 2005 is required to demonstrate six months or twelve months of prior continuous employment abroad within the preceding three years. As you know, section 413(a) of the Consolidated Appropriations Act of 2005, Pub. L. No. 108-447 restored, effective June 6, 2005, the previous requirement for twelve months of continuous employment, which had been reduced to six months by section 2 of the Act of January 16, 2002, Pub. L. 107-125. Section 413(b) of Public Law 108-447 provided that the amendment to INA 214(c)(2)(A) in section 413(b) "shall apply only to petitions for initial classification filed on or after the effective date of this subtitle."

Insofar as section 413(b) of Pub. L. 108-447 fails to make specific mention of blanket petitions, the question has arisen as to Congress's intent with respect to the requisite period of prior continuous employment for future applicants for an L-1 visa under a blanket petition approved prior to June 6, 2005. On the one hand, an individual petition is not required for persons who are seeking visas pursuant to an L-1 blanket petition; this would imply that the six month employment requirement would apply to individuals seeking visas under a previously approved blanket petition. On the other hand, Congress's use of the term "initial classification," which follows the words "petitions for," strongly implies that Congress intended to grandfather only those individuals who were already in L-1 classification on June 5, 2005. To explain, a blanket L-1 petition is not specifically a request for "classification," but instead, for pre-adjudication as to whether the statutorily required corporate affiliation exists. A request for classification as an L-1 nonimmigrant under such a blanket petition does not, however, entail the approval of an individual petition. Indeed, the approval of a blanket petition itself does not absolve any individual covered under the blanket petition from having to establish his or her qualification for L-1 "classification" in his own right. There is additional support of the view that Congress's focus in enacting section 413 of Public Law 107-447 was on the individual, and not on the blanket petitioner; it would be unduly burdensome both to the blanket petitioning employer and the L-1 nonimmigrant if the latter were required to leave his or her L-1 position and depart from the United States in order to obtain an additional six months experience abroad simply in order to resume employment in the L-1 position.

Based on the above considerations, USCIS and our office believe that the better reading of section 413 of Public Law 108-447 is to limit it to grandfathering of individuals who were already in L-1 classification pursuant to a blanket petition approved prior to June 6, 2005. This reading more appropriately reflects Congress's intent to ensure that persons who were already in L-1 classification as of June 5, 2005 would not be rendered ineligible to extend their stay in such classification because of the increased continuous experience requirement.

In conclusion, it is the shared view of USCIS and our office that the reinstated twelve month requirement applies to an alien who is seeking initial classification as an L-1 nonimmigrant on the basis of a blanket petition filed with USCIS irrespective of when the blanket petition was filed. Of course, an alien who was classified as an L-1 nonimmigrant prior to June 6, 2005 on the basis of the blanket petition would continue to be subject to six-month employment requirement."

Conclusion

VisaPro readers are aware (see DOS Visa Office Clarifies Policy on Blanket L published on April 8, 2006) that in response to an inquiry from the DOS Liaison Committee of AILA, the Visa Office had confirmed that an employer who filed a petition for initial blanket L classification prior to June 6, 2005 may continue to bring in blanket qualified workers with only 6 months of qualifying employment. The Visa Office indicated that USCIS concurred with this policy, which was subject to continuing examination by the agencies. The new view adopted by both, DOS and USCIS, would mean that an alien with less than one-year of qualifying employment will not be eligible to seek an L-1 nonimmigrant classification under a blanket petition.

It is yet to be seen what will be the fate of visas for initial L classification issued to foreign nationals with only 6 months of qualifying employment with an employer who filed the blanket petition prior to June 6, 2005. We at VisaPro will continue to update our esteemed readers as soon as there is any clarification or update from DOS or USCIS on this matter.


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