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L-1B Denial Rates Increase

The L-1 visa category allows companies to transfer their executives and employees from abroad to the United States. L-1A visas are for executives and managers while L-1B visas are for employees with specialized knowledge. In a competitive global economy, these visas are essential to companies doing business in the United States and abroad, allowing them to allocate skilled employees to where they are needed most. However, as a study by the National Foundation for American Policy (NFAP) finds, in recent years US Citizenship and Immigration Services (USCIS) has denied an increasing number of L-1B petitions. In the fiscal year 2013, USCIS denied a staggering 34% of L-1B petitions.  From 2003 to 2007 L-1B denial rates were consistently below 10%, but in 2008 the rate jumped up to 22%.

According to the study, employers have also criticized USCIS for the high rates of “Requests for Evidence” (RFEs), which the agency issues to obtain more information instead of making an immediate decision on a petition. In 2011, USCIS asked 63% of petitioners for more evidence, yet before 2008 RFE rates were quite low. For example, in 2004 the RFE rate was only 2%.  But for some reason, the RFE rate rose from 17% in 2007 to 49% in 2008. RFEs are time consuming and often cause expensive project delays for companies.

There have been no changes in regulations since 2008 and USCIS has failed to communicate with the business community as to why rates of denial and RFEs have risen so dramatically. That leaves employers to speculate. According to NFAP, some say that USCIS and consular officers require that a standard of “extraordinary ability” be met, despite the fact that such ability is not required for an L-1B visa. Others think that USCIS and consular officers have unwritten rules that go beyond the statute or that these officers don’t believe that a company could have several employees with specialized knowledge.

Furthermore, rates of denial and RFEs are particularly high among Indian born employees. Again, USCIS has not explained why this might be.

The study comes to the conclusion that the high denial rate for L-1B impedes the ability of international companies to do business in the United States. The high rates of RFEs hinder business as well, leading to increased costs and delays. Employers report that they have lost millions of dollars and that the high denial rates discourage companies from operating in the United States. The inconsistency and opacity displayed by USCIS makes the US a less attractive place to do business.

“L-1 Denial Rates for High Skill Foreign Nationals Continue to Increase”. NFAP Policy Brief March 2014. http://www.nfap.com/pdf/NFAP%20Policy%20Brief%20L-1%20Denial%20Rates%20Continue%20March%202014.pdf.