With holiday travel rapidly approaching, we encourage our clients to closely note the recent guidance the U.S. Department of State (DOS) has issued for L-1 visa applicants. According to the DOS's Foreign Affairs Manual (FAM), individuals seeking an L-1A or an L-1B visa will be issued a visa stamp in accordance with the validity periods listed in the reciprocity schedule (see “Reciprocity by Country” at http://travel.state.gov/visa/fees/fees_5455.html?cid=9215 for more information). This is a huge change. Historically visas were issued with more restrictive validity periods, and never beyond the expiration date of an L-1A or L-1B petition.
Five-year L-1 visas will become the norm in many cases
As a result of this rule, many L-1 nonimmigrants will receive L-1 visas valid for five years. This is a welcome change for many applicants. The expiration of an underlying individual or blanket L petition request may be approved for a period of three years or less. But visa stamps will likely be valid for five years in many cases. We anticipate this change to result in no confusion for individuals who hold L-1 visas issued pursuant to individual petitions. However, special attention should be given to the expiration date of a Form I-94 admission record; that date should be carefully tracked to monitor an individual's status. A person's status is expressly not controlled by the validity date on his or her visa. Rather, the date on a Form I-94 controls the period of one's admission into the U.S.
Additional Concerns for L-1 visas issued pursuant to blanket petitions
Blanket L-1 visa holders need to exercise some additional caution in tracking their status, given the changes being implemented with five-year visa validity. Specifically, the discrepancy between a visa stamp expiration date and an L petition validity date creates an issue. Which date controls in terms of the L-1 visa holder's status? What if U.S. Customs and Border Protection (CBP) is inconsistent, issuing in some cases Forms I-94 with expiration dates of five-year visas, and in other cases expiration dates based on the validity of a blanket petition or Form I-129S?
Recent guidance suggests that the duration of one's status will be controlled by the date on an underlying Form I-129S. This appears to be a reasonable conclusion, and it is an important point for blanket L-1 visa holders who need to track their lawful status. But this issue is not yet fully settled. A comprehensive interagency review will hopefully address this conundrum.
Blanket L-1/L-2 visa holders should travel with a properly endorsed Form I-129S
We are noticing that some U.S. consular posts have been annotating visas to indicate that applicants must present an approved Form I-797 (individual petition approval notice) or Form I-129S along with their valid visa, when they appear at a U.S. port-of-entry.
For holders of blanket L-1/L-2 visas, we think that having an endorsed Form I-129S is sound planning when traveling and seeking re-entry into the U.S. with a visa. For individuals entering the U.S. pursuant to an approved blanket L petition, it is also critical to ensure that a U.S. consular post has properly endorsed a Form I-129S at a visa appointment. DOS also recommends that L-2 family members carry a copy of the principal spouse or parent’s L petition approval. We think that this cautious advice is prudent.
U.S. CBP officers make mistakes from time to time when determining and recording the permissible duration of L-1 and L-2 periods of stay. It is therefore very important to review any Form I-94 card that an L-1 or L-2 visa holder receives at entry into the U.S. On this note, U.S. CBP also considers passport validity with respect to one's stated period of admission. So we advise all of our clients to renew their passports early, in addition to exercising caution and reviewing their new Forms I-94 when entering the U.S.