A blog about U.S. immigration matters by Paul Szeto, a former INS attorney and an experienced immigration attorney and counsel. Contact Info: 732-632-9888, http://www.1visa1.com/ (All information is not legal advice and is subject to change without prior notice.)

Friday, March 20, 2015

L-1B Visa Denial Rates at All Time High

The denial rate for L-1B "specialized knowledge" multinational employees was all time high in 2014. According to the USCIS statistics, the denial rate for L-1B increased to 35 percent in FY2014.   These numbers were reported and analyzed by  the National Foundation for American Policy in their March 2015 report.  

High Historic H-1B Denial Rate
To put things in perspective, one should note that the denial rate for L-1B petitions was only 6 percent in FY 2006.  The denial rate has increased gradually over the past decade especially the last few years.  Such increase is particularly alarming since the legal requirements for this visa type have not changed.  

Indian Nationals Hit Hardest
The NFAP report also contains these additional insights:

- The L-1B denial rate for Indian nationals is 56 percent for FY2012 through FY 2014, compared to an average denial rate of 13 percent to employees from all other countries during the same period. 

- The denial rate for employees already working in the U.S. (41 percent in FY 2014) is higher than first-time applications (32 percent).  The difference is disturbing as USCIS usually gives deference to visa petitions that have already been approved previously.

- While only 2 percent of L-1B cases received a Request for Evidence in FY2004, 45 percent of L-1B petitions were issued RFE in FY2014, 

Main Reason for Denial
The main reason for denying an L-1B visa petition is usually based on a finding that the job duties are not "specialized" in nature.  While the L-1A is used to transfer executives and high-level managers of international companies to the U.S., the L-1B visa was created to transfer employees who have special knowledge of the company's product, service, research, equipment, techniques, management or other interests and its application in international markets.  Alternatively, the L-1B employee can also be somebody who has an advanced level of knowledge or processes and procedures of the company.

The difficulty lies on the vagueness of this definition.  While the company believes that certain knowledge and skills constitute specialized knowledge, the Immigration Examiners think differently. In fact, USCIS sometimes takes the view that in the modern world, most jobs require certain degree of specialized knowledge and, therefore, an L-1B petition must show more to warrant approval. Another perception is that petitioners are using the L-1B visa in place of the H-1B visa to bypass the latter's visa cap.

In technological jobs, employees must apply technical knowledge of computer hardware and software to perform their job duties.  Is this knowledge specialized knowledge contemplated by the L-1B visa or just regular technical skills that most employees in the profession are expected to possess? Sometimes the distinction is only a fine line, depending on the particular facts of the case and interpretation. 

USCIS has promised to issue more guidance on the standard of adjudication on L-1B visa.  Until then, employers must understand the current high denial rates in this type of cases and act accordingly.  Based on a careful analysis of each case and presentation of appropriate evidence and legal arguments, our office has been able to secure L-1B approvals for our clients even in this unfriendly adjudication environment. 

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