L-1B Denial Rates Increase While USCIS Promises New Guidance

Wednesday, April 8, 2015 - 12:15am

In the last several years, companies have been experiencing an increasing number of L-1B denials, as well as Requests for Additional Evidence (RFE), issued by the United States Citizenship and Immigration Services (USCIS). The L-1B visa category exists to assist international companies with the transfer of individuals who have specialized knowledge from a company abroad to work for a related company in the United States. However, that intracompany transfer process has been getting more and more difficult over the past several years without any specific reason why.

The RFEs issued by the USCIS have been increasingly burdensome and often deter and prevent companies from transferring very qualified individuals to the U.S. The denials have also gotten uglier over the last few years, again, with the effect of discouraging and preventing companies from transferring their key specialized knowledge personnel to the U.S. when business necessitates such key personnel transfers in order to thrive and, in some cases, survive.

The National Foundation of American Policy published a report addressing this very real increasing rate in denials and issuance of RFEs for L-1B petitions filed with USCIS. The NFAP Policy Brief issued in March 2015: “L-1 Denial Rates Increase Again for High Skill Foreign Workers” states that “an analysis of the data reveals:

  • The denial rate for L-1B petitions to transfer employees of Indian origin is a remarkable 56 percent for FY 2012 through FY 2014, compared to an average denial rate of 13 percent to transfer employees from all other countries during the same period. Only 4 percent of Canadian nationals were denied L-1B petitions, compared to 56 percent of Indian nationals, between FY 2012 and FY 2014.
  • Surprisingly, USCIS denies L-1B petitions at a higher rate for employees already working in the U.S. and extending their status (41 percent in FY 2014) than initial applications (32 percent).
  • Time-consuming Requests for Evidence (RFE) from adjudicators for L-1B petitions have continued at a high level – 45 percent in FY 2014. In FY 2004, only 2 percent of cases received a Request for Evidence.”

The NFAP reported the following denial rates by nationality: Indian 56%, Chinese 22%, Mexican 21%, French 19%, British 16%, Japanese 15%, German 15%, and Canadian 4%.

We invite you to read the complete NFAP report which has some interesting and disturbing information about the increasing difficulty companies face in transferring key personnel to the U.S.

It is unclear why the denial and RFE rates have continued to increase year after year, especially since 2007 when the denial rate was only 7 percent. There has been no change in law, no change in regulation, and no official change in USCIS policy. The USCIS promised to develop new guidance for L-1B adjudications but until March 24, 2015 had failed to provide any such guidance. Since 2012, as the NFAP report shows, denial and RFE rates have continued to increase and attorneys and companies have grown increasingly frustrated without any guidance from USCIS with respect to what exactly does the UCSIS want in order to grant approval of an L-1B petition.

On March 24, 2015, the USCIS issued a Policy Memorandum on its L-1B Adjudications Policy. This Policy Memorandum has been posted and the USCIS is requesting feedback from the public until May 8, 2015. The Memo is scheduled to become effective on August 31, 2015. This Policy Memo clarifies for USCIS adjudicators what employers will be required to demonstrate in order to prove that an employee possesses specialized knowledge. Only time will tell how helpful this Memo will prove to be and whether it will help reduce the date of L-1B denials and RFEs.

Please contact your Maggio + Kattar attorney if you have any questions about this Report or new guidance proposed by USCIS.