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.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.