At the October 8, 2015 liaison meeting with the American Immigration Lawyers Association (AILA), the U.S. Department of State Visa Office (VO) clarified its current policy relating to the endorsement of Forms I-29S, Nonimmigrant Petition Based on Blanket L Petition. The endorsement dates, in the view of VO, define the period during which a worker is authorized for Blanket L classification.
Though VO’s comments on its I-129S policy clarify the significance of the endorsement validity dates relative to the L visa and Form I-94 expiration dates, many questions remain. Furthermore, as training remains an issue for consular officers and Customs and Border Protection (CBP), employers will likely continue to see a variety of I-129S endorsement dates and I-94 admission dates. Following is an in-depth discussion of this issue at the conclusion of the October liaison meeting.
In February 2012, the Department of State (State) amended 22 CFR §41.54 to “separate” the validity dates of L visas from the petition expiration date (PED). This means that an L visa may be issued with a validity date of up to five years.
As a result of this change, workers applying for a blanket L visa may receive a Form I-129S endorsed for up to three years and an L visa valid for up to five years. The difference between the five-year visa expiration date and the shorter I-129S endorsement creates a procedural challenge: There is no regulatory or policy process for a worker outside the U.S. to present a Form I-129S for endorsement other than through a visa application. Furthermore, employers have no clear guidelines explaining which date governs the period of employment authorization for a blanket L worker when the visa, the endorsed I-129S, the period of employment requested in Part 4.c. of the form, and the I-94 all might, and frequently do, have different expiration dates.
Current State Policy for Obtaining Form I-129S Renewals
At the October 9, 2014 meeting, State confirmed that workers outside the U.S. wishing to renew their blanket L classification upon expiration of the I-129S endorsement may file an application for a new blanket L visa even though the existing visa remains valid. Furthermore, at the April 15, 2015 meeting, State confirmed that a blanket L worker with a reciprocity limited visa (e.g., citizens of Mexico who may be issued an L visa with a validity period of up to one year) can apply for a new visa without presenting a new, fully documented blanket L application as long as the I-129S endorsement remains valid. Employers wishing to extend the blanket L status of a worker inside the U.S. may file a petition to extend both the classification and the status of the worker with USCIS.
Current State Policy on Form I-129S Endorsement Dates
At the time State amended the regulation to separate L visa validity dates from the supporting petition, the Foreign Affairs Manual (FAM) instructed consular officers to endorse Forms I-129S for a period of three years. On December 17, 2014, State amended the instructions to consular officers relating to I-129S endorsement found at 9 FAM 41.54 N.13.6. This new section states that the validity dates for the I-129S should be either three years or through the date of intended employment indicated in Part 4c. of the I-129S, whichever is less. The instruction limiting Form I-129S endorsement to the date of employment requested in Part 4.c. appears to be current State policy.
Challenges under Current Form I-129S Endorsement Policies
Upon applying for admission to the U.S., blanket L workers normally must present a valid L visa and a valid Form I-129S to CBP. The L visa, issued in accordance with the applicable reciprocity limit and the I-129S, endorsed for three years or for the requested dates of employment authorization, usually have different expiration dates. To help guide CBP officers to admit blanket L workers for a period of time consistent with its current endorsement policy, 9 FAM 41.54 N.13.6 instructs consular officers to indicate an I-129S expiration date rather than petition expiration date (PED) on new blanket L visas. Prior to the revision of the FAM note, it was common for the PED listed on a blanket L visa to reflect the expiration of the initial three year blanket L petition approval versus the individual’s I-129S expiration date.
When a blanket L worker applies for admission to the U.S., the CBP officer determines their eligibility for the L classification and authorizes a period of admission. Historically, CBP (and legacy INS) admitted blanket L workers for a uniform period of three years from the date of admission. Although it has not released any public guidance, CBP appears to have abandoned uniform three year blanket L admissions and adopted a new policy. Liaison meeting minutes from the November 2014 CBP liaison meeting indicate that the correct period of admission for a blanket L-1 beneficiary is up to three years, provided the following conditions are met:
- The applicant for admission has the requisite passport validity;
- The application has the requisite authorization on Form I-129S for the period of admission; and
- The applicant will not exceed the regulatory maximum period of admission in the United States for the L-1 class of admission (5 years for L-1B; 7 years for L-1A).
CPB consistently takes the position that notwithstanding an approved nonimmigrant petition from USCIS and/or a visa issued by State, CBP has the ultimate authority to determine whether the alien is qualified for the nonimmigrant classification sought, is admissible, and if so, for how long. Based on this position, the CBP-issued I-94 should have legal precedence over all other documents and its expiration date should govern the status and employment authorization of a blanket L worker. This proposition is supported by the fact that employers completing Forms I-9, Employment Eligibility Verification, are instructed that a foreign passport and Form I-94 may be used to verify identity and employment eligibility.
Therefore, a blanket L employer and worker could reasonably conclude that the I-94 issued by CBP takes precedence over the I-129S.
If the endorsement dates on Form I-129S define the period for which a worker is authorized for L classification, the endorsement dates are in effect equivalent to the approval dates on an individual L-1 petition. A blanket L worker would therefore be authorized for employment only during the dates of endorsement. If the blanket L worker is authorized for employment only during the I-129S endorsement dates, admitting the worker and issuing an I-94 for a period of time beyond the expiration of the endorsement is, necessarily, an error by CBP. Therefore, employers should not rely on a Form I-94 issued by CBP to a blanket L worker that expires on a date beyond the expiration of the I-129S endorsement. Regardless of whether a worker is in possession of an unexpired I-94 suggesting he is in blanket L status, prior to the expiration of the status of the blanket L worker, the employer should send the worker abroad to apply for a new blanket L visa in order to obtain a newly endorsed I-129S.