India: Current Issues With L-1B Adjusdications

Last Updated: 25 July 2016
Article by Zeenat Phophalia

Recent L-1B Trends in India

Early this year, the U.S. Citizenship and Immigration Services ("USCIS") released statistics related to L-1B denial rates for fiscal year 2014, in response to a Freedom of Information Act request filed by the National Foundation for American Policy (NFAP). The NAFP report said that 56% of L-1B cases filed for Indian nationals are denied whereas the denial rate for nationals of Canada, Britain and China is 4%, 16,% and 22%, respectively. The denial rate reached an all-time high of 35% in 2014. This is a sharp increase from the denial rate in 2006 which was a mere 6%. Despite these denial rates, the regulations that provide for L-1B adjudication remain unchanged and employers are left with no concrete guidance in preparing L-1B visa petitions.

India has been dealing with rejection rate of 40% of certain visa types including H-1B and L-1B visas. According to some of India's IT companies, rejection numbers are high because the requirements for H-1B and L-1 visas are not clearly defined and visa officers have a greater discretion to refuse visas and frequently do reject visas. Indian IT industry body, Nasscom, has been addressing concerns around L-1 visas for many months and raising the issue at different forums.

Issues arising in L-1B Adjudications

One big issue which is the crux of an L-1B application and frequently comes up during USCIS adjudication and consular processing is: whether the skills and experience presented amount to "specialized knowledge"? Consular officers find it easier to determine what does not amount to specialized knowledge than being able to identify clearly approvable specialized knowledge, especially in the services industry as opposed to the manufacturing industry. Lack of evidence that the company has some value to contribute which is unique in the marketplace and industry and that will lead to economic and employment growth in the U.S. could also be a basis for L-1B rejection.

Smaller companies are often the ones that are impacted more than the larger ones. Although there is no statutory requirement for a minimum size or revenue of a company for qualifying under L-1B classification, often times, USCIS adjudicators and consular officers consider these companies too small to qualify for L-1B and reject visas based on this premise. Small businesses are equally important and entitled and capable of utilizing specialized knowledge as big companies, and decisions based on this fact alone can be misplaced without taking other factors into consideration.

To strengthen your case for specialized knowledge, applicants should bear in mind that evidence such as training schedules of the company, certifications, programs conducted should be presented and available. For small companies, this may be a challenge since they may not have adequate documentation to support the specialized knowledge requirement.

In practice, however, typically, employers receive an RFE (Request For Evidence) on a large number of L-1B petitions. The RFE is typically extensive and requests a long list of items and supporting documents to demonstrate that the applicant possesses specialized knowledge required under this classification. As a result, companies prefer to file L-1B petitions under the Corporate Blanket L where possible or avoid L-1Bs altogether and opt for other non-immigrant visas, like H-1B.

Employers also express frustration over long and often times, inconsistent processing times of L-1B petitions. On an average processing time of L-1B petition exceeds 30 days at the very least, and this could pose challenges on recruitment and planning for an employer. There is also disappointment due to inconsistent decisions across USCIS' sister service centers. At times, a company will receive a denial for one employee and an approval for another in a situation where both employees have the same skill sets and perform the same job duties.

USCIS' L-1B Memo Offers Some Guidance

In August 2015, the USCIS issued a memo to provide some guidance to adjudicators on determining what would constitute specialized knowledge. The memo establishes a clearer standard of adjudication and provides that, when adjudicating L-1B petitions, USCIS officers must apply a preponderance of the evidence standard, by which an employer must show that it is more likely than not that the employee is eligible for this category. L-1B memo expressly asks officers not to apply higher standards such as "clear and convincing evidence" or "beyond a reasonable doubt" that some USCIS officers seem to have been applying when reviewing L1B petitions. This, hopefully, will result in more equitable adjudications within the regulatory parameters.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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