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COVER ME: The Blanket L Program
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By Alan Tafapolsky, A. James Vazquez-Azpiri, Charles Foster Stephen Yale-Loehr* Introduction In inclement weather conditions, it’s better to be covered by a blanket full of holes than no blanket at all. The blanket L program is designed to allow multinational corporations to transfer their executives, managers and specialized knowledge professionals to the United States without undergoing the often lengthy processing periods for regular L petitions. The blanket L program was formally incorporated into the Immigration and Nationality Act (INA) in 1990, yet the regulations and procedures governing the blanket L process still lack comprehensiveness and specificity. There are holes and much loose stitching in the jurisprudence surrounding the Blanket L program. In addition, because the blanket L process requires the joint jurisdiction of the Immigration and Naturalization Service (Service or INS) and the Department of State (DOS), many substantive and procedural questions regarding the blanket L program remain unanswered as a result of the inability of these two agencies to provide a comprehensive coordinated approach to blanket L processing. This article analyzes the blanket L program. Section II explains the similarities and differences between the blanket L procedures and the regular/individual L petition process and the strategic considerations to be taken into account in deciding between the two. Section III discusses blanket L petitioner requirements. Section IV provides guidance on the filing of individual blanket L visa applications. Section V analyzes some of the unanswered issues of the blanket L program. Similarities, Differences, and Strategic Considerations in Choosing the Blanket L Process Over the Regular L Petition Process There are many factors to consider in deciding whether to file a blanket L petition or use the regular L process. These include the following:
A blanket L petition takes a long time to prepare and submit to the INS. But once it is approved, it provides the globalized corporation with an immigration tool to quickly transfer executive, managerial and specialized knowledge professionals to the United States. Often, an intending L intracompany transferee may enter the United States in blanket L status about one week after submitting Form I-129S and the corresponding visa application to the relevant embassy or consulate. This celerity represents an enormous advantage to companies that need to transfer executive, managerial and specialized knowledge personnel frequently and with little advance notice. Current processing times at Service Centers for regular L-1 petitions, which often take 30-60 days or longer, underscore the importance of this benefit. The respective universes of people eligible for the blanket L versus a regular L differ in one regard. Both categories allow the admission of executives and managers. Specialized knowledge personnel also qualify for the regular L program. But to qualify for the blanket L program, the specialized knowledge personnel must be "professionals," as defined under INA § 101(a)(32). Thus, one strategic consideration in deciding to go the blanket L versus the regular L route is to determine whether the company’s foreign specialized knowledge personnel can qualify as "professionals" under the INA. Another strategic consideration is whether the petitioner and each of the related entities are engaged in commercial trade or services. If any of the entities are non-profits, a blanket L petition may not be advisable. An individual L petition must be filed with the INS Service Center that has jurisdiction over the location where the person will be employed. This leaves little flexibility about where to file an individual L petition unless the beneficiary has a choice of locations at which to work within the petitioning company. By contrast, a blanket L petition is filed "with the director having jurisdiction over the area where the petitioner is located." This offers opportunities for large companies with many locations. The regulatory language, combined with the INS’ "sole jurisdiction" concept, which used to allow companies to consolidate all immigration petitions with one INS Service Center, may allow legitimate and creative forum shopping to find the INS Service Center that is most convenient, knowledgeable, or quickest for blanket L purposes. One critical difference between the regular/individual L program and the blanket L program is that the regular/individual L process requires every petition to establish both that the individual transferee is eligible for transfer and that the necessary corporate relationship (that of a qualifying organization) exists. By contrast, the blanket L program assumes that the qualifying organization criterion has been proven and requires only proof of the transferee’s individual eligibility for L status. The blanket L program also requires a division of duties between the Service and the DOS, and divorces the qualifying organization determination from the other aspects of the adjudication process. After a blanket L petition is approved, both the forum and form of the subsequent substantive determinations change. The jurisdiction usually shifts from INS Service Centers to U.S. embassies and consulates abroad to determine that the individual qualifies under the approved blanket L petition. The blanket L program provides an important but often overlooked benefit over the individual L process. A blanket L-1 beneficiary may transfer to any other U.S. organization listed on the approved blanket petition during his or her authorized L-1 stay "without referral" to the Service if the alien’s duties will remain "virtually the same" at the new organization. The practical effect of this provision is that a U.S. qualifying organization wishing to hire an employee working in an almost identical position at another qualifying organization in blanket L status in the United States need not obtain approval of an L petition. As such, the blanket L program serves to facilitate not only the cross-border mobility of company employees, but also the intra-U.S. mobility of such employees. The blanket L program has at least one strategic disadvantage compared to the regular L program: it exposes its participants to the peril of non-reviewable consular discretionary authority. Unlike participants in the regular/individual L transferee program, whose individual petitions must be filed at INS Service Centers, the vast majority of transferees under the blanket L program file visa applications at consulates and embassies abroad. While a denial of a regular L petition at an INS Service Center may be appealed, consular denials of blanket L visa applications are not reviewable. Business entities and immigration practitioners using the blanket program must therefore be circumspect in preparing and filing visa applications under the blanket L program, given this consular absolutism. A blanket L petition has certain ongoing paperwork requirements that do not exist in regular/individual L cases. An initial blanket L petition is valid only for three years. Before the blanket L petition expires, the blanket L petitioner must file a petition on Form I-129 and the L supplement to extend the validity of the blanket L petition indefinitely. The blanket L extension petition must be accompanied by a restatement of the blanket L petitioner’s eligibility to be a blanket petitioner, supported by documentary evidence and a report on admissions for aliens who have been transferred to the United States during the first three years of the blanket L petition’s duration. The complexity of the task of compiling the report on admissions is great, even if the company has a centralized or single record keeper for such information. The report on admissions should include a list of aliens admitted under the blanket L petition during the preceding three years, the positions that they have held, the employing qualifying organization, and their dates of admission and final departure (if applicable). If this information must be collected from various qualifying organizations and then compiled by the blanket petitioner, the speed and accuracy of this process will be impaired. In addition, the extension of the blanket L petition’s validity should also reflect any amendments to the list of qualifying organizations. This can be hard to do for large corporations with many related entities. Practitioners should be aware of these paperwork requirements before pursuing a blanket L petition. Procedures and Requirements for the Initial Blanket L Petition Under Service regulations, a blanket L petitioner must meet the following four conditions:
The blanket L petitioner and all of the business organization’s entities that are included in the petition must be "engaged in commercial trade or services." The purpose of this requirement is to restrict participation in the blanket L program to for-profit business organizations and to exclude nonprofit organizations. Despite the presence of the locution "commercial trade or services" (which is not defined in the regulations), the Service does not intend this requirement to narrow the class of business organizations eligible for the blanket L program to companies that are engaged in commerce. Although the Service’s Operations Instructions indicate that a blanket L petitioner’s "statement" is sufficient, such a petitioner should demonstrate its engagement in commercial trade or services (and the engagement of the remaining qualifying organizations in such trade or services) by submitting a copy of its business organization’s most recent annual report. Such documents, which generally consist of an exhaustive analysis and description of the business organization’s activities and performance over the course of a given year prepared for existing and potential shareholders, should provide adequate evidence of the ongoing engagement of the petitioner and the qualifying organizations in commercial trade or services. An annual report should also contain extensive financial data (including consolidated statements of operations and consolidated balance sheet data) that will be crucial in establishing the requisite engagement in commercial trade or services. For publicly traded corporate organizations, the best evidence of such engagement is an annual Form 10-K statement and the most recent Form 10-Q quarterly statement, prepared in accordance with sections 13 and 15(d) of the 1934 Securities and Exchange Act. A petitioner filing a blanket L petition on behalf of a business organization must show that it has an office in the United States that has been "doing business" for one year or more. "Doing business" is defined by regulation as "the regular, systematic, and continuous provision of goods and/or services[.]" This requirement is intended to deny access to the blanket L program to new business organizations or corporate organizations that are just beginning to do business in the United States, regardless of the size of their overall presence outside the United States or the global scale of their operations. This limitation incorporates the Service’s unwillingness to accord the benefits of the blanket L program to companies whose viability in the United States has not yet been demonstrated through the one-year probationary period required of "new" offices under the regular L-1 intracompany transferee program. It should be noted, however, that profitability is not a criterion of the "doing business" requirement; a company that is operating at a loss, even a loss that casts doubts on its ability to continue as a going concern, may still qualify as a petitioner, as long as it has been providing goods and/or services in the manner demanded by the Service for at least one year. The "doing business" requirement does not, as the DOS has recognized, incorporate a requirement that the petitioner engage in international trade. Doing business on a purely domestic scale is acceptable. The requirement of "doing business" in the United States for one year is not designed to restrict petitioner status to companies that are based or incorporated in the United States. A foreign corporation may act as a petitioner for a blanket L petition, as long as it has at least one office in the United States that has met the one-year "doing business" requirement. The "mere presence" of an office or an agent of the foreign corporation in the United States, without a showing of systematic and continuous business activities will be insufficient to obtain petitioner status for that company. A company’s representative or liaison office that provides services in the United States (even if these services are for an overseas entity) will be found to be doing business. As evidence of the fact that it has been doing business for one year or more, the petitioner should present a copy of its certificate of incorporation and articles of incorporation reflecting its incorporation a year or more before the filing of the blanket L petition. In the alternative or in addition to the above the petitioner may present evidence of a prior year’s annual report or 10-K to meet the above requirement. The petitioner’s financial statements and corporate tax returns covering a one-year period before this filing may also be included to demonstrate the petitioner’s ongoing business. Other persuasive evidence of the petitioner’s existing business at the time of filing the petition includes unexpired contracts, recent invoices or receipts for goods or services, rental or leasing agreements, business licenses, promotional materials, and press reports. A petitioner filing a blanket L petition on behalf of a corporate organization must have at least three domestic and foreign branches, subsidiaries, or affiliates. Business organizations wishing to participate in the blanket L program should note that the requirement that the petitioner have at least three related entities in the United States and abroad applies only to a company’s substantive eligibility to act as a petitioner. There is no requirement that at least three of the petitioner’s branches, subsidiaries, or affiliates be included as qualifying organizations listed in the blanket L petition. As long as the petitioner meets the three related entity requirement, the blanket L petition could include only two qualifying organizations: a transferring entity outside the United States, and a receiving entity in the United States. Under the Service’s Operations Instructions (OI), the inclusion of three or more organizations in the blanket L petition is "adequate evidence" by itself that the petitioner has three or more domestic and foreign branches, subsidiaries, or affiliates. The petitioner should be careful to establish that its relationship to these three or more entities will withstand scrutiny under the Service’s definition of "branches, "subsidiaries," and "affiliates." Thus, if the petitioner is using a subsidiary in which it holds less than a 50 percent share ownership as one of the three qualifying entities under this section, it must provide evidence that it controls this subsidiary "in fact." Similarly, if the petitioner is listing a joint venture in which it holds a 50 percent share as a qualifying entity, it must show that it has equal control and veto power over this entity. A petitioner filing a blanket L petition must also show that, together with the other qualifying organizations included in the petition, it has: (a) obtained at least 10 approvals for L-1 petitions filed for managers, executives, or specialized knowledge professionals in the 12 months before filing the petition; (b) U.S. subsidiaries or affiliates with combined annual sales of at least $25 million; or (c) a U.S. work force of at least 1,000 employees. This listing is disjunctive; a petitioner need only show that it has satisfied one of these conditions. A business organization seeking approval of a blanket L petition may satisfy the fourth basic requirement of substantive eligibility for this category by showing that the petitioner and its other qualifying organizations have obtained at least 10 L-1 individual petition approvals within the 12 months before filing the blanket L petition. This recourse allows smaller companies that may fall short of the revenue and work force requirements to qualify for the blanket L program through the frequency and success of their use of the L transferee category. The Service restricts the petitions that may be used to satisfy the count of 10 approvals to those that have been approved for managers, executives, and specialized knowledge professionals. This reflects the three categories of employees that may be transferred under the blanket L program. By requiring that the 10 individual L-1 approvals have been obtained by "[t]he petitioner and the other qualifying organizations," the Service’s regulations appear to require that at least one of these successful petitions have been filed by the petitioner itself, and that at least one of these 10 approvals have been obtained by a qualifying organization other than the petitioner. Although the regulations are silent on this issue, it can reasonably be concluded that the term "petitions" in this context refers only to initial L-1 petitions, and not to extension or amendment of stay petitions filed on an intracompany transferee’s behalf. The most obvious (and perhaps only) evidence that can show that a petitioner has obtained approvals of the requisite 10 L petitions for managers, executives, or specialized knowledge professional transferees in the past year consists of the I-797 approval notices for these employees. A petitioner that is including an approval notice for an L-1B petition approved on behalf of a specialized knowledge professional to show its satisfaction of this requirement should attach additional material (such as a university degree diploma) reflecting the beneficiary’s qualification as a professional, since this cannot be determined from the face of Form I-797. A business organization may also fulfill the fourth basic requirement of blanket L eligibility by showing that its petitioner and the other qualifying organizations included in the petition have U.S. subsidiaries and affiliates whose combined annual sales have reached at least $25 million. It is not clear why the Service chose to specify that the requisite $25 million be raised through "sales," rather than any other revenue-generating activity or activities, although it is entirely plausible that it intended to exclude companies whose income is generated on a purely passive basis. This requirement should be interpreted broadly to include companies whose income is derived from selling services as well as goods or other commodities. The Service’s regulations leave open the question of when the petitioner’s group of companies must have attained $25 million in sales. A reasonable interpretation would be that the Service intends to qualify companies whose most recent annual financial statements indicate combined sales of at least $25 million. Less convincingly, but still quite plausibly, it could be argued that companies that have at least once in their lifetimes reached this figure in sales should also qualify. It is not clear, therefore, whether or not a group of companies whose annual sales over the past few years (but not in the most recent year) have averaged over $25 million would qualify for blanket L petitioner status under this prong of the regulations. The $25 million in sales criterion is intended to serve as a gauge of a corporate organization’s size, and not of its profitability. As long as the petitioner and its related entities have reached the $25 million threshold, it is irrelevant that these companies may be operating at a loss, even one that causes their future viability to be questioned. The Service’s Operations Instructions indicate that a petitioner’s "statement" regarding the annual sales of its U.S. subsidiaries or affiliates "may" be accepted as evidence of the petitioner’s fulfillment of this requirement. Unless the petitioner is part of an extremely well known corporate organization, it should supplement this statement with adequate evidence that the $25 million figure in sales has been reached. Obviously, the most compelling evidence of this will be an audited financial statement reflecting the revenues generated through sales. Such financial statements are generally included in an annual report. The petitioner may also submit contacts for goods/services or invoices if these will, when counted together, help the petitioner reach the $25 million in sales threshold. A further measure of a corporate organization’s size, and therefore of the desirability of its participation in the blanket L program, is its number of employees. A corporate organization with annual revenues of less than $25 million and fewer than 10 L-1 approvals a year may obtain approval of a blanket L petition by showing that it has a U.S. work force of at least 1,000 employees. The Service’s regulations are unclear as to when the thousand employee count should have been reached. A related ambiguity concerns the meaning of "employees" in this context. The regulations fail to elucidate this term, and therefore create an issue as to whether or not it includes seasonal, temporary, or independent contractors who are deemed for employment law purposes to be de facto employees. Once again, the Service’s Operations Instructions provide that the petitioner’s own "statement" that it and the other qualifying organizations have a U.S. work force of at least one thousand employees "may" constitute sufficient evidence that this requirement has been met. Publicly traded corporate organizations that file Form 10-K with the Securities and Exchange Commission are required to include in this document a statement of the number of employees employed, and this can be used as evidence that the thousand employee count has been reached. Filings with the Internal Revenue Service that reflect the organization’s withholding of payroll tax may provide alternative or additional evidence of the one thousand employee count. A blanket L petition must offer evidence that all of the entities listed in it are qualifying organizations under the Service’s regulatory definition. This requires the petitioner to show, first, that all of these entities are "doing business." This requirement can be met by referring the Service to the evidence already proffered to show that the listed entities are engaged in "commercial trade or services." Second, the blanket L petitioner must also show that all of the entities listed in the petition are connected to each other through the required parent, branch, affiliate, or subsidiary relationships. To accomplish this, the petitioner may wish to prepare a graphic organizational chart that illustrates the precise relationship among all of these entities. The Service may also require evidence from a third-party source as to whether or not the necessary corporate relationships exist. A number of such sources exist, including the National Register Publishing’s Directory of Corporate Affiliations: Who Owns Whom?, Dun & Bradstreet’s America’s Corporate Families & International Affiliates, and the CorpTech Directory of Technology Companies. Filing Individual Certificates of Eligibility for Blanket L Visas The following guidance on filing blanket L visa applications at U.S. consulates and embassies is provided as only a general outline to the practitioner. Consular posts may vary in their particular procedural or evidentiary requirements for individual blanket L applications. A prudent practitioner is advised to contact a consulate before filing the first individual blanket L application to determine the post’s particular filing requirements. In general, petitioners submitting Forms I-129S should prepare the following documentation in support of these applications:
While the above referenced procedures and evidence may seem relatively simple, a fair amount of ambiguity may arise in completing forms I-129S and their supporting documentation. A detailed treatment of these procedures are found in an article on the blanket L program.
When Form I-129S is approved along with Form OF–156, the following procedures occur. All three copies of Form I-129S are endorsed by the consular officer for a period not to exceed three years. The original Form I-129S and one copy of the Form I-129S are returned to the alien and the consulate retains one copy for its records. The consulate also places an L-1 visa stamp with a blanket L designation in the passport of the applicant and L-2 stamps in the passports of any derivative family members. When the alien is inspected and admitted into the United States, he or she must present his or her visa and both the original and one copy of Form I-129S to the inspecting officer. The officer should stamp both copies of Form I-129S for a period not to exceed three years, and should return one copy to the alien, forwarding the other copy to the Service Center with jurisdiction over the blanket L petitioner for control purposes. Forwarding of the copy of Form I-129S to the appropriate Service Center may assist the alien in the future if he or she applies for an extension of stay under the blanket L program in the United States. If necessary, applicants should explain these procedures to inspecting officers, since such officers may be unfamiliar with blanket L admission procedures. To this end, immigration counsel or the organization assisting the alien in filing Form I-129S may provide the applicant for admission with a letter that explains the procedures for admission under the blanket L program. The letter should include a statement that the alien may be admitted for a period as long as the period endorsed on Form I-129S, despite the fact that the visa expiration date and/or the blanket petition expiration date may occur earlier. To support this effort at educating INS inspection officers, counsel are advised to provide blanket L visa holders with a copy of a recent INS memorandum outlining appropriate periods of admission under the blanket L category. The alien should be issued Form I-94 reflecting L-1 status for a period to coincide with the date listed on Form I-129S. The alien should immediately review the "until date" on Form I-94 to ensure that this date is consistent with the date on Form I-129S. The alien should be advised to do this before he or she leaves the inspection station. If the I-94 is issued for a shorter period of stay to coincide with the visa expiration date or the blanket L petition’s expiration date, the alien should politely request the inspecting officer to amend the "until date" on Form I-94. If the alien is not successful in immediately correcting this error, he or she may have it corrected in a secondary or deferred inspection at a later date or by filing an extension of stay petition under the blanket L petition. INS regulations set forth a process by which an alien may change from another nonimmigrant status to blanket L status. As a practical matter, immigration counsel must complete additional procedures such as filing a regular Form I-129 and L Supplement (with fee) with the Service Center with jurisdiction over the blanket L. Otherwise the Service has no mechanism for accepting individual blanket L petitions and issuing forms I-94. The Service’s lack of familiarity the blanket L process has raised certain conundrums for the immigration practitioner. If the petitioner files with the Service Center with jurisdiction over the blanket L petition, the petitioner complies with Service regulations but invites a "transfer notice" from the Service Center if the area of proposed employment of the blanket L alien is outside the Service Center’s jurisdiction. Additionally, despite the fact that the Service Center should approve, endorse and return a copy of the newly filed form I-129S, none of the four Service Centers are presently complying with this process. This essentially derogates the filing, from an evidentiary standpoint, to that of a regular L filing without affording the beneficiary the additional benefits and flexibility of the blanket L. We urge INS HQ and the four Service Centers to work with practitioners to formalize uniform procedures for changing /extending blanket L status for those individuals already present in the United States. With the understanding that there is no "exact" way to implement a change to blanket L nonimmigrant status, here is how we approach the situation. The procedure set forth above for filing Form I-129S at a consulate should be followed in a change of status situation (with the exception of filing a visa application on Form OF-156.) The application should be submitted to the Service Center with jurisdiction over the blanket petitioner, regardless of the alien’s location of employment. In addition, Form I-129 and the L Supplement in duplicate, the appropriate filing fee and evidence of lawful nonimmigrant status (i.e., a valid Form I-94 or similar evidence) should be submitted in support of the change of status petition. Documentary evidence of the qualifying organizations’ eligibility for L-1 status need not be included, since the qualifying organization determination has already been made through the adjudication of the blanket petition, and should be readily apparent from the blanket I-797 approval notice and the attached list of qualifying organizations. Upon approval of the change of status petition, the Service Center should issue a Form I-797 approval notice with an attached I-94, and should return one copy of Form I-129S with a Service endorsement. It remains unclear whether an alien seeking a visa at a consulate subsequent to the approval of a change of status petition to blanket L status may submit a Form I-797 approval notice and a Service endorsed I-129S only, or must submit an entirely new I-129S package for adjudication. As a practical matter, although a change of status may be effected for aliens present in the United States by filing the appropriate petition with a Service Center, sending the alien overseas to submit Form I-129S and a visa application abroad may be more expeditious, given processing times for nonimmigrant petitions at the Service Centers. Consular processing of Form I-129S also negates the requirement for future visa issuance should the alien be required to travel outside the United States and then return to the United States on short notice. As described below, certain aliens are not required to obtain a visa to enter the United States. Two classes of visa-exempt aliens may apply for L status under a blanket L petition approval: Canadians and all other visa-exempt aliens. Nationals of countries other than Canada, though not present in the United States, must follow the procedures set forth above for applications for a change of status to blanket L status. They may enter the United States using their I-797 individual petition approval along with their Service-endorsed copy of Form I-129S. Canadians may apply for entry in blanket L status under the North American Free Trade Agreement (NAFTA). Under this procedure, a Canadian may apply for blanket L status at a Class A port of entry, a U.S. airport handling international traffic, or a U.S. pre-flight station by filing Form I-129S (one original and two copies) and an attached Form I-797 blanket L approval notice with an attached list of qualifying organizations. The Form I-129S, Certificate of Eligibility package described above in the section on filing at a consular post should be prepared in support of the I-129S form. The only addition to the consular package for Canadian applicants is evidence of the applicant’s Canadian’s citizenship in the form of a passport, birth certificate, or other document evidencing nationality. There are two types of change of employer situations that a blanket L alien will confront: those that require referral to the Service by the filing of a formal petition; and those that require no notification to the Service. The Service’s regulations state that a blanket L alien "may be reassigned to any organization listed in the approved [blanket] petition without referral to the Service during his or her authorized stay if the alien will be performing virtually the same job duties. If the alien will be performing different job duties, the petitioner shall complete a new Certificate of Eligibility and send it for approval to the director who approved the blanket petition." While it is not explicitly stated in the regulations, an alien may transfer to any listed blanket organization in virtually the same job duties regardless of whether the listed blanket entity existed on a former (but valid) blanket petition or an amended blanket petition. The Service has never provided exact clarification as to what the definition of "virtually the same" means. Immigration practitioners and employers using this transfer provision must guess as to what "virtually the same" means. A proposed job that is "virtually the same" as an existing job is arguably one that has the same job title and essential job functions, or one that has a different title but precisely the same essential job functions. Once the essential job functions change from the existing job to the proposed job, the employment begins to lose its quality of virtual identity. It is a matter of discretion as to how much dissimilarity there must be in a proposed job before the alien becomes ineligible for a transfer without referral to the Service. The Service should provide further guidance as to what it means by "virtually the same" for listed qualifying organizations to use this provision with confidence that they are complying with the regulations. An alien using the "no referral" provision of the blanket L should be properly advised of the legal standard and the law regarding this provision so that he or she may properly inform the Service during admission to the United States if the current employing entity is different from that reflected on a person’s form I-94 and I-129S. The Service’s regulations provide little guidance as to what I-9 documentation should be used for blanket L aliens who transfer to a listed blanket entity under the "no referral" provision of the blanket L program. The employment at the new entity does not clearly fall within one of the enumerated categories of "continuing employment" listed in the regulations. Hence, the new employer must perform the I-9 process for the blanket beneficiary within three days of his/her hire at the new entity. While the new employer may not request specific employment authorization documents from the new blanket beneficiary, the beneficiary may offer as acceptable documentation a social security card (with the notation "valid with INS authorization only") and his or her INS-endorsed Form I-129S (with an attached listing of the approved blanket entities) and an unexpired I-94 card. The Service-endorsed I-129S lists the job duties or "virtually the same" job duties as those to be performed at the new entity. The blanket approval notice should list the new employer as a "qualifying organization." Finally, the alien’s Form I-94 will indicate that the blanket L beneficiary’s authorized stay has not yet expired in the United States. While this makeshift approach to the I-9 process for aliens who use the "no referral" provision of the blanket L program seems to be lawful, we encourage the INS to provide clear guidance as to what would be acceptable I-9 documentation for aliens who transfer pursuant to this section of the blanket L regulations. What if the duties to be performed at the proposed blanket transferee’s new place of employment are not virtually the same as the ones the transferee is presently performing? In this case, the filing of a new Form I-129S is required. Depending upon the goals of the qualifying organization(s), the filing of Form I-129S can be accomplished through one of two methods. If speedily transferring the blanket L alien is the priority, the fastest method of processing a new Form I-129S is to send the alien abroad to file a new Form I-129S at a consulate. The new Form I-129S can usually be processed between one day and three weeks, depending upon the local processing time for adjudicating nonimmigrant cases. The alien may, but need not, concurrently apply for a new visa at this time. If the immediacy of the transfer is not a priority, the qualifying organization may opt to file a new Form I-129S amending the alien’s employment duties at the Service Center with jurisdiction over the blanket petitioner. Since Form I-129S contains no information blocks for aliens present in the United States, Form I-129, the L supplement, and the appropriate filing fee should be filed along with a new Form I-129S. All supporting documentation required for a change of status or non-Canadian visa-exempt application as set forth above should be included in this filing. In addition, a single copy of the previously endorsed Form I-129S should accompany the petition. Filing at a Service Center has the advantage of eliminating lengthy travel and the hefty costs associated with consular processing. Processing an amended Form I-129S at a Service Center has the additional advantage of obviating certain risks associated with such processing. Much like filing an amendment to reflect changed employment conditions, an employer wishing to extend the stay of a blanket L alien may choose one of two strategies. The first strategy is to send the alien abroad to file a new I-129S application and visa application at a U.S. consulate. Technically speaking, this is not an extension of stay but is instead a subsequent application for admission upon the expiration of the original Form I-129S. The advantage of employing this strategy is speed of processing (between one day and three weeks, depending on the consular post involved). An additional advantage of processing at a consulate abroad is the consolidation of the renewal of Form I-129S and the blanket L visa in one submission. The second strategy entails the filing of a new Form I-129S, a copy of the previously endorsed I-129S, as well as the filing of Form I-129, the L supplement, and the appropriate filing fee with the Service Center with jurisdiction over the blanket petitioner. The I-129S package should also include a copy of the blanket petition extension I-797 approval notice or a receipt notice for blanket petition extension if the previous blanket petition was not granted for an indefinite period of time. An extension of stay for an individual in blanket L status may be filed while a blanket petition extension or amendment of the blanket petition is pending, but not after the petition has expired. A blanket L alien may not continue to remain under the coverage of the blanket L if the blanket petition will expire (without any extension of stay) either during a blanket L alien’s authorized stay or while a Form I-129S extension of stay is pending. In this case, the blanket L alien must file a regular extension of stay application on Form I-129 and the L supplement. It should be noted, however, that if a blanket petition is revoked as opposed to expired, aliens who are already present in the United States in blanket L status, and are otherwise eligible for L nonimmigrant status, may remain in the United States for the duration of their endorsed Form I-129S.An alien who has filed his or her extension of stay with a Service Center will receive up to 240 days of work authorization pursuant to INS regulations. While visa revalidation is not an issue if an alien chooses to extend his or her blanket L stay by submitting a new Form I-129S package at a consulate abroad, it is necessary if the alien chooses to extend his or her blanket stay in the United States and wishes to travel outside the United States and be readmitted. Aliens may apply for a revalidated blanket L visa for themselves and their derivative family members at the DOS office in Saint Louis if an initial L visa was issued abroad at a U.S. consulate. The initial blanket L visa contained in the applicants’ passports must not have been expired for more than one year. Additionally, the existing visa, if not expired, must not be valid for a period longer than sixty days at the time of visa application. Applicants applying for revalidated visas at the DOS office in Saint Louis must submit:
The processing of a revalidated blanket L visa at the DOS may take anywhere from two weeks to two months. Blanket L aliens not wishing to be without their passports for this period of time or certain blanket L aliens ineligible for visa revalidation may submit a visa application at a U.S. consulate abroad. The application should include all of the above documentation with the exception of #7. Additionally, an applicant should include a cover letter to the consulate stating that his or her application for visa is based on an already approved Form I-129S. Certain consulates (especially high fraud posts) may require an attorney-certified copy of all documentation used to obtain the I-129S extension from the Service. Additionally, some posts may require an entire new I-129S package if they are not willing to recognize the Service’s adjudication of the I-129S. Since the documentation for the Service’s approval of Form I-129S has already been prepared once, it may be more expedient to submit a new I-129S package along with the visa application, rather than fight a consulate that requests an entirely new I-129S package. An alien who has successfully extended his or her stay in blanket L status must obtain a new visa with his or her newly issued Form I-129S if he or she wishes to travel outside the United States and be readmitted in blanket L status. Visa-exempt aliens may be readmitted under the newly issued Certificate of Eligibility. The Holes (Unanswered Questions) in the Blanket L Process
There is a hidden danger in a company’s not timely extending its blanket L-1 program, either by oversight or indecision. The thought may be, if not renewed it will be possible to later file and obtain approval of a new blanket L program within a reasonable period of time. By regulation, however, the company is required to file for an indefinite extension of the blanket L petition and if not timely filed, the company is not eligible to file for a new blanket petition for three years. This omission creates an unusual situation that could prevent a major corporation from requalifying for another three year period simply by failing to timely file for an extension of the blanket petition. Conclusion Chronic delays at the INS Service Centers make the blanket L program a very attractive tool for transferring employees to the United States. To make full use of the blanket L program, however, the INS and DOS must fill in some of the holes found in the blanket L program. Only then will the blanket L program achieve its true potential and provide its greatest warmth.
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