Category: L-1


Turning the Corner? Draft Memo Points to Limited Progress on L-1B Visas

April 28th, 2015 — 5:12pm

The U.S. Citizenship and Immigration Services (USCIS) has released a guidance memo on L-1B visas for “specialized knowledge” workers, finally fulfilling a promise made in 2012. Issued as a draft, the agency will accept comments through early May and the final version will go into effect at the end of August 2015.

Employees are said to hold “specialized” or “advanced” knowledge if their expertise isn’t easily transferrable to another employee. The L-1B visa category is one of few tools available to multinational companies to transfer staff with specialized knowledge from a foreign branch to a related U.S. office, but recent dramatic increases in L-1B denial rates have frustrated many businesses. This guidance offers modest clarification to the current USCIS concept of “specialized” and “advanced” knowledge and includes a checklist of acceptable conditions for L-1B applications.

Recent denial rates for L-1Bs have been staggering. Based on recently released data from USCIS, the National Foundation for American Policy (NFAP) found that the denial rate for L-1B petitions increased from six percent in 2006 to an historic high of 35 percent in 2014, even as applicable laws and regulations remained unchanged.1 Incredibly, the denial rate for L-1B petitions for Indian employees stood at 56 percent for 2012 through 2014, compared to an average denial rate of 13 percent for all other nationalities. The NFAP report also found that the number of applications received by USCIS dropped by 23 percent between 2012 and 2014, demonstrating that denials have discouraged U.S. employers from transferring these skilled individuals into the United States.

The American Immigration Lawyers Association (AILA) welcomed the draft of the long-awaited policy memo. “Uneven adjudication of L-1B visa applications over the last several years have stymied businesses trying to ramp-up production or services in the United States, hurting the economy and costing American jobs,” notes AILA President Leslie Holman. “The tenor and tone of the memo is a positive step forward, reiterating and expanding on many of the principles in previous memos. We hope for a more seamless, straightforward, and consistent adjudication system for L-1B visas. Training USCIS staff on the guidance laid out in this memo will be critical to making a real difference in how applications are evaluated, and essential to bringing common sense back to this process.”2

The principal concerns about the memo are whether certain restrictive adjudication practices will become institutionalized and if Service Center personnel will follow the guidance on recognizing an earlier approval for the same employer and employee when the approval was granted by a U.S. Consulate for a blanket L-1B petition.

 

References:

1“L-1 Denial Rates Increase Again For High Skill Foreign Nationals.National Foundation for American Policy, NFAP Policy Brief, March 2015.

 

2 “Welcome Changes to Business Visas but Implementation Means Everything.” American Immigration Lawyers Association, March 25, 2015. http://www.aila.org/advo-media/press-releases

Comment » | Department of Homeland Security, I-129, L-1

New Study Finds Dramatically Increased Rates of Denials and Requests for Evidence for H-1B Professionals, L-1 Intracompany Transferees, and O-1 Extraordinary Ability Nonimmigrants

February 24th, 2012 — 6:00pm

With its analysis of new data from the government, the nonprofit, nonpartisan National Foundation for American Policy (NFAP) makes crystal clear:  Over the past four years, the U.S. Citizenship and Immigration Services (USCIS) has dramatically increased its denials of L-1 and H-1B petitions and much of the increase in denials involves Indian-born professionals and researchers. NFAP also reports a dramatic increase in denials of O-1 “extraordinary ability” petitions, and an across-the-board increase in requests for additional evidence (RFEs) for all of these categories. The data suggests that USCIS has changed the standards for these petitions, beginning in 2008–09, despite no change in the law or relevant regulations and, as a result, has demonstrated its capacity to keep skilled foreign nationals out of the United States. Here are some of the statistics from the report:

  • Denial rates for L-1B “specialized knowledge” petitions rose from 7 percent in FY07 to 27 percent in FY11. In FY11, 63 percent of L-1B petitions were delayed due to RFEs; in FY04, only 2 percent received RFEs.
  • Denial rates for L-1A executives and managers petitions increased from 8 percent in FY07 to 14 percent in FY11. RFEs increased from 4 percent in FY04 to 51 percent in FY11.
  • Denial rates for H-1B petitions increased from 11 percent in FY07 to 17 percent in FY11. (In FY09, the denial rate was 29 percent.) RFEs rose from 4 percent in FY04 to 26 percent by FY11.  (In FY09, the RFE rate was 35 percent.)
  • Denial rates for O-1A extraordinary ability petitions rose from 4 percent in FY08 to 8 percent in FY11. For O-1As, RFEs increased from 1 percent in FY04 to 27 percent in FY11,
  • Country-specific data on new (initial) L-1B petitions indicate USCIS is more likely to deny a petition from an Indian-born professional than from a national of another country. The denial rate for Indian-born applicants for new L-1B petitions rose from 2.8 percent FY08 to 13.4 percent in FY11. (In FY09, the rate was 22.5 percent.)  The drop in FY11 Indian denials can be attributed to a 40 percent decline in the number of receipts for new L-1B petitions for Indian professionals between FY10 and FY11.

Employers already are selective about who they sponsor and thus petition for those who they believe meet the standard for approval. They complain, rightly so, that the time lost due to the increase in denials and RFEs are costing them millions of dollars in project delays and contract penalties, while aiding competitors that operate exclusively outside the United States. Denying these businesses the ability to transfer these key personnel harms innovation and job creation in the U.S. and encourages employers to keep more resources outside the country to ensure predictability.

As noted by NFAP, the dramatic increase in denial and RFE rates for employment petitions raises serious questions about the training, supervision, and procedures of adjudicators and of the government’s commitment to maintaining a stable business climate for companies competing in the global economy.

Comment » | Department of Homeland Security, H-1B, L-1

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