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
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
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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