The following is a summary taken from a memorandum issued by the AILA (American Immigration Lawyers Association) and DOS (U.S. Department of State) Liaison Committee on October 8, 2015.
The U.S. Department of State Visa Office (VO) clarified its current policy relating to its endorsement of Forms I-129S for Nonimmigrant L-1 Petitions based on a Blanket L program. According to the VO, the actual dates written on the I-129S, by the consular officer at the U.S. Embassy, 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 (especially relative to the L visa and Form I-94 expiration dates), many questions remain.
Furthermore, as training remains an issue for consular officers at U.S. Embassies around the world, as well as Customs and Border Protection (CBP) officers, employers will likely continue to see a confusing variety of I-129S endorsement dates and I-94 admission dates.
The confusion became especially poignant, when in February 2012, DOS amended 22 CFR §41.54, decoupling the validity dates of L visa stamps from the approval period allowed under the L-1 regulations. As a result, an L visa stamp may be issued with a validity date up to the limit imposed by the applicable reciprocity agreement between the U.S. and the respective foreign country – up to five (5) years in many cases. As a result of this change, a Blanket L applicant may receive a Form I-129S endorsed for up to three (3) years and an L visa stamp valid for up to five (5) years.
Thus, when such conflicting expiration dates are issued, employers have no clear guidelines explaining which date governs the period of employment authorization for a Blanket L worker – when the visa stamp, 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.
At the very least, at a previous October 9, 2014 AILA liaison meeting, DOS had already confirmed that workers outside the U.S. wishing to renew their Blanket L classification upon expiration of the I-129S endorsement may file a NEW VISA stamp application for a new Blanket L visa stamp, even though the existing visa stamp remains valid. Employers wishing to extend the Blanket L status of a worker inside the U.S. may file a petition with USCIS to extend both the classification and the status of the worker.
On October 8, 2015, DOS confirmed its position that the I-129S endorsement dates are equivalent in effect to the individual nonimmigrant petition approval dates issued by USCIS. The endorsement dates, in this view, define the period of time for which a nonimmigrant worker is authorized for Blanket L classification. In layman’s terms, the I-129S endorsement dates are the dates the worker can legally stay and work in the U.S.
When a Blanket L worker applies for admission to the U.S., however, the CBP officer determines their eligibility for the L classification and authorizes a period of admission by issuing the I-94. Historically, CBP admitted Blanket L workers for a uniform period of three (3) years from the date of admission. Although it has not released any public guidance, CBP appears to have abandoned this uniform three (3) year Blanket L admissions and seems to have adopted a new policy. The new CBP policy seems to be that the admission period for a Blanket L-1 beneficiary is up to three (3) 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).
However, employers continue to report that CBP officers frequently admit Blanket L workers for seemingly random periods of time, including (i) three (3) years from the date of admission, (ii) until the I-129S expiration date, or (iii) until the visa stamp expiration date (which could be up to five (5) years). As a result, it is common to see a Blanket L worker with a CBP-issued I-94 with an expiration date that extends beyond the I-129S endorsement date. The question is then how long can someone legally work if the CBP gives the worker more time on the I-94 than is otherwise authorized on the I-129S?
CBP consistently takes the position that, notwithstanding an approved nonimmigrant petition from USCIS and/or a visa stamp issued by DOS, 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. So, it seems that as per CBP’s position, a worker who is given authorized employment authorization on their I-94 exceeding the I-129S authorized period of stay, will not encounter issues with CBP (or any other government agency).
BUT… such a conclusion, however, would appear to conflict with DOS position on the significance of the I-129S endorsement dates since, during October 8, 2015 discussions, DOS confirmed its understanding that that the endorsement dates on Form I-129S define the period during which a worker is authorized for Blanket L classification. This policy position taken together with the CBP’s current policy on Blanket L admissions leads a certain conclusion!
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 issued by USCIS. A Blanket L worker would therefore be authorized for employment only during the dates of I-129S endorsement dates. 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, we believe that 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.
And in CONCLUSION, it is clear that, regardless of whether a worker is in possession of an unexpired I-94, prior to the expiration of the I-129S endorsement date, the employer should either file a petition with USCIS to extend the status of the Blanket L worker or send the worker abroad to apply for a new Blanket L visa stamp in order to obtain a newly endorsed I-129S.