A recent report by the National Foundation for American Policy (NFAP) focused on the denial rates for the L-1B visas. In its March 2015 report NFAP analyzes denial rates over a number of years and for a number of different beneficiaries, from a variety of countries. The conclusion is that the denial rate for L-1B petitions is at an all-time high, with about 35% of all L-1B petitions being denied. For Indian nationals, the L-1B denial rate is an astonishing 56%.
Notable Points of the L-1B Denial Analysis
The overall denial rate for the 2014 fiscal year (FY2014) is 35%, a five-fold increase from the 7% denial rate in FY2007. The denial rate for L-1B petitions to transfer employees from Indian origin is 56%, while it is 13% for all nationals of all other countries. Canadians are at 4%, British nationals are at 16%.
L-1B extension petitions for workers who are already in the U.S. (and were granted L-1B once) have a higher denial rate (41%) than initial applications (32%) There is no clear explanation or reason behind this — presumably, once USCIS has granted an L-1B visa initially, an extension should be easier (in relative terms) to get approved. Apparently, this is not the case.
Requests for Evidence (RFE)s have continued to be at a very high rate – 45% of all L-1B petitions face an RFE, often requiring a very lengthy and time-consuming response. Some may think back to FY2004 when only 2% of the L-1B petitions faced an RFE.
The NAFP analysis, based on date obtained from USCIS under the Freedom of Information Act (FOIA), provides a fairly detailed overview of the challenges ahead of L-1B employers, especially those who wish to bring foreign employees from India. Our office witnesses first-hand the extremely time-consuming RFEs for a number of L-1B petitions and we share the concerns of our L-1B employer clients who face severe uncertainty in bringing key personnel to the U.S. on L-1B.
The concerns are particularly acute over the last two to three years where the annual H-1B cap has been exhausted over the first five days and has limited the options for bringing qualified foreign employees to the United States. With the H-1B cap gone in five days and extremely challenging L-1B adjudication process, foreign employers find in increasingly difficult to be able to bring talent to the U.S.
Please do not hesitate to contact us if we can review your case, answer any questions or schedule a consultation. We also invite you to subscribe to our free weekly immigration newsletter to receive timely updates on this and related topics.No comments
The Department of Homeland Security (“DHS”) Office of Inspector General (“OIG”) has released a report on the L-1 visa program after a thorough analysis of the program, its weaknesses and opportunities for improvement. The report makes a number of recommendations to DHS on how to strengthen the L-1 visa program by making more robust review of a number of aspects, but also, importantly, calls for a better definition and training to officers with respect to “specialized knowledge” standard, which has been one of the main issues in the L-1 program recently.
Brief Background of the L-1 Program
The L-1 visa program was institute in the 1970s and is a work-based visa which allows companies with international operations to place employees in the U.S. for a limited (5 or 7 years) term.
The L -1 visa is one of many visa types that require an approved petition. Before a foreign traveler can apply for such a visa, a multinational company (the petitioner) must submit a petition (Form I 129) to USCIS requesting that USCIS make a determination that the intending traveler (the beneficiary) fits within the L-1 visa category.
An L-1 employee sent to work temporarily in the United States by the petitioning employer must qualify in one of two subcategories: L-1A (an alien performing services in a managerial or executive capacity) or L-1B (an alien performing services as a specialized knowledge worker). Most L-1 petitions are adjudicated by Immigration Services Officers (ISOs) at the California and Vermont Service Centers. After USCIS approves a petition for a beneficiary who is overseas, a Department of State (DOS) consular officer interviews the individual at a U.S. consulate or embassy.
L-1 Adjudication Trends
According to USCIS, the rate of L-1 approvals have been trending down since fiscal year (FY) 2007 when the peak of 57,218 approvals was reached. For example, in Fy2011, the approvals were only 33,301. Out of this number, Indian nationals held the majority (26,919), followed by nationals of UK, Japan, Canada and Mexico.
The downward trend in L-1 approvals over the past several years has many causes, but from our experience, the biggest reason for the decline in the rate of L-1 approvals is the “specialized knowledge” standard which is applied to all L-1B applications.
(Not-so-Brief) Background on the “Specialized Knowledge” Issue
The L-1 visa classification was created by Congress in 1970 without providing a statutory definition of “specialized knowledge.” The first definition was published in 1983 and in 1987, the INS revised the definition of specialized knowledge to be “knowledge possessed by an individual whose advanced level of expertise and proprietary knowledge of the organization’s product, service, research, equipment, techniques, management, or other interests of the employer are not readily available in the United States labor market.” This definition required an employee to be a key person with materially different knowledge and expertise that is critical for job performance and relates exclusively to the employer’s proprietary interest.
In 1988, INS issued a policy memorandum instituting a broader interpretation of specialized knowledge, defining it as “special knowledge possessed by an employee that is different from or surpasses the ordinary or usual knowledge of an employee in the particular field.
The Immigration Act of 1990 (IMMACT) enacted the first statutory definition of specialized knowledge, clarifying that the beneficiary’s knowledge need not be proprietary to the petitioner or limited in the U.S. labor market. IMMACT states that an “alien is considered to be serving in a capacity involving specialized knowledge with respect to a company if the alien has a special knowledge of the company product and its application in international markets or has an advanced level of knowledge of processes and procedures of the company.” Following the passage of IMMACT, Congress noted that nonimmigrant visas, such as the L-1 and H-1B, had enhanced trade and accommodated useful movement of people and products.
As a result of IMMACT, INS promulgated the existing regulatory definition of specialized knowledge at 8 CFR § 214.2(l)(1)(ii)(D). Federal immigration officials issued several policy memorandums providing guidance on what should be considered specialized knowledge. A July 1991 INS regulation gave the interpretation of specialized knowledge that the individual must possess “special knowledge” that applies in international markets or “an advanced level of knowledge or expertise in the organization’s processes and procedures.” In March 1994, INS issued the memorandum “Interpretation of Specialized Knowledge,” which noted that a petitioner’s assertion that an alien’s knowledge is different does not establish that the alien possesses specialized knowledge. In September 2004, USCIS issued the memorandum “Interpretation of Specialized Knowledge for Chefs and Specialty Cooks seeking L-1B status.” This memorandum clarified guidance in the 1994 memorandum that chefs or specialty cooks generally are not considered to have “specialized knowledge” for L 1B purposes, even though they may have knowledge of a restaurant’s special recipe or food preparation technique.
In 2008, the Administrative Appeals Office (AAO) issued a non precedent decision on an appeal submitted by GSTechnical Services (GST). In the GST decision, the AAO concluded that routine work experience and knowledge of a company’s products do not constitute specialized knowledge.
Specialized Knowledge Improvements Suggested
This background is helpful to give us perspective and to highlight how difficult it is to explain, in an objective way, what “specialized knowledge” is. The OIG, in their report, support this assertion by concluding that immigration officers do not apply the specialized knowledge definition uniformly and there is much confusion as to what the test even means.
When OIG interviewed immigration offers about this standard, among the most common terms used to described the immigration officers’ concerns were “unquantifiable”, “subjective”, very difficult to adjudicate”, “open to interpretations, unfortunately.” According to the OIG report, immigration officers refer to specialized knowledge as “you know it when you see it.” Obviously, this is alarming for a number of L-1 program stakeholders because the lack of objective guidance which can be followed leads to great deal of uncertainty and lack of faith in the system.
The OIG report concludes that the statutory definition of specialized knowledge is vague and unclear, leading to inconsistent decision-making and confusion among petitioners as to the actual denial reasons. This leads to the OIG report to recommend DHS to publish new clear guidance on the specialized knowledge standard.
Additional Recommendations on the L-1 Program
In addition to the specialized knowledge issue, discussed above, the OIG report makes a number of other recommendations to improve the L-1 program. Among these recommendations are:
- Establish a process to prevent the practice of L-1 blanket beneficiaries who are denied due to lack of specialized knowledge to petition and obtain approval/stamping under an individual L-1 petition by establishing a more uniform beneficiary tracking system;
- Provide thorough training to CBP officers who are often the first government officers to handle an L-1 petition submitted by a Canadian L-1 applicant at the port of entry;
- Establish better mechanism to track whether an L-1 petitioner is subject to the $2,250 filing fee when they employ 50 or more employees in the US and when 50 percent of their US workforce is on L-1 status;
- Strengthen the tools to review “new office” L-1 petitions to be able to adjudicate properly cases where a new office is being established in the US and to determine whether the conditions of the new office have been met for the purpose of the first (and subsequent) L-1 petition extensions – for example, OIG recommends a site visit to the new office be mandatory before the new office L-1 petitions are extended;
- Increase use of VIBE to check petitioner information and eliminate fraud and abuse and extend the use of VIBE to other agencies, including CBP;
The L-1 OIG report is helpful in providing a good review of what needs to be improved in the L-1 program. We have worked with many clients over the past several years who have expressed frustration by the L-1 program and the lack of uniformity and predictability. In its internal response to the OIG report, DHS has indicated that they are working on an memorandum to establish more clear guidance with respect to the specialized knowledge standard. This memorandum is under internal review and we hope to see public release soon.
Please do not hesitate to contact us if we can help you. Also, please visit us again or subscribe to our free weekly newsletter to ensure that you obtain this and related immigration-related news and announcements.No comments
Some of our clients and readers are aware that in March 2012, the U.S. Embassy in India introduced the Interview Waiver Program (IWP) which allows eligible individuals to apply for certain types of visa without being interviewed in person by a U.S. consular officer. Under this program, holders of B, J-2, H-4, L-2, C, D visa holders, in addition to children under 7 years of age and elderly applicants over 80 years of age could have their in-person interview waived.
Last week, in a press release from November 19, 2012, the U.S. Embassy in India announced that the IWP would be expanded to include (1) H-1B and individual (non-blanket) L-1 workers, (2) F-1 students returning to the same school/program; and (3) children applying before their 14th birthday traveling on any visa.
About the Interview Waiver Program
The Interview Waiver Program was introduced in March 2012 and allows individuals who seek to obtain U.S. visa stamp and who meet the eligibility requirements to skip the interview by a consular officer step. According to the U.S. Mission in India, this program has been successful so far and will be expanded to allow additional applicants to take advantage of the streamlined procedure.
Another reason behind this move is also the increasing demand in U.S. visas in India. In 2011, consular officers in India processed nearly 700,000 nonimmigrant visa applications, an increase of over 11 percent over the previous year. At the current time, applicants have to wait fewer than ten days for a visa interview to be scheduled and, according to the Department of State, spend less than one hour at U.S. consular facilities in India. In addition to the Interview Waiver Program, in September 2012, the U.S. Mission in India introduced additional changes to the application process, including the payment, biometrics and interview steps.
Interview Waiver Program Eligibility Requirements
Under the expanded program, the following types of visas are eligible for the interview waiver program:
- Business/Tourism (B1 and/or B2);
- Students (F-1) returning to attend the same school and same program;
- Temporary workers on H-1B visas or on individual L-1A or L-1B visas who are returning to work for the same petitioner in the same classification and the previous visa has not expired for more than 12 months;
- Dependent (J2, H4, L2);
- Transit (C) and/or Crew Member (D) – including C1/D;
- Children applying before their 14th birthday traveling on any visa class;
- Applicants applying on or after their 80th birthday traveling on any visa class.
There are additional requirements, all spelled out at the www.ustraveldocs.com website. Among the most notable are (1) the previous visa must have been issued in India, must be issued after November 1, 2008 (for dropbox use) or after August 1, 2004 (biometrics required); (2) there must not be a “Clearance Received” annotation on the previous visa; and (3) the previous visa must not have expired for more than 48 months (for most classifications, 12 months for H-1B or L-1 visas).
We encourage the U.S. Mission in India’s efforts to streamline the application process and allow applicants, especially H-1B or L-1 workers who are often under time pressure to return to their employment, to process their visas faster. It should be noted, however, that even though some visa applicants may be able to take advantage of the interview waiver program, the U.S. Consular Section officers are likely to call for an interview any applicant whose application paperwork is missing or if there are questions about one’s continued eligibility.
As always, prior to submitting a visa application, please remember to check with the U.S. consulate regarding documentation requirements for the specific visa type. As the U.S. consulates in India are implementing the new application processes, we recommend that you stay flexible, and build in extra lead time to accommodate travel itineraries. Please feel free to subscribe to our free weekly newsletter to obtain developments on this and related topics. If our office can be of any help, please feel free to contact us.No comments
In a recent report the National Foundation for American Policy (which claims to be a non-profit, non-partisan organization dedicated to public policy research on trade, immigration, education, and other issues of national importance) has analyzed the USCIS rates of issuing requests for evidence (RFE) and denials of L-1 and H-1B petition over the past several years and provides several interesting observations.
The Report: USCIS Has Changed L-1 and H-1B Adjudication Standards
The report, Analysis: Data Reveal High Denial Rates For L-1 and H-1B Petitions, dated February 2012, claims that USCIS has (silently) changed the adjudication standards for L-1 and H-1B petitions which has, between 2007 and 2011, affected dramatically the outcome of the adjudications of such petitions. The report analyzes trends in rates of RFEs and denials between 2007 and 2011 and notes that,
“The dramatic increase in denial rates and Requests for Evidence for employment petitions without any change in the law or regulations raises questions about the training, supervision and procedures of the career bureaucracy that adjudicates petitions and the U.S. government’s commitment to maintaining a stable business climate for companies competing in the global economy.”
Key Findings of the Report
Among the key findings of the report are the following:
- denial rates for L-1B petitions rose from 7% in FY2007 to 22% in FY2008 (without changes in the relevant laws or regulations), and then stayed relatively high at 26%, 22% and 27% for fiscal years 2009, 2010 and 2011, respectively;
- denial rates for H-1B petitions increased from 11% in FY2007 to 29% in 2009, but has subsequently decreased to 21% in 2010 and 17% in FY2011;
- denial rates for L-1A (international managers) petitions increased from 8% in 2007 to 14% in 2011;
- RFE rates for L-1B rose from 17% in FY2007 to 49% in FY2008 and to 63% in FY2011 (the report also reminds that the RFE rate in FY2004 was 2%);
- RFE rates for H-1B rose from 4% in FY2004 to 18% in FY2007 to a high of 35% in FY2009 (the most recent number is 26% RFE rate for FY2011);
- RFE rates for L-1A increased from 4% in FY2004 to 24% in FY2007 and to a current 51% in FY2011.
Denial and RFE Rates Show Alarming Trends; Some Rates Appear to be Decreasing
The rate of RFEs and denials is alarming because it does not seem to be supported by substantive changes in the law or regulations. Some of the increased RFE/denial rates may be explained due to the slowing economy, and lack of ability of petitioners to show placement or available work. Additionally, some of the increase in -1B cases may be attributed to increased scrutiny (and the Neufeld Memo) on IT consulting companies. Nonetheless, the sharp increase in the RFE/denial rates for the H-1 and L-1 petitions are alarming for many US companies who rely on foreign talent to continue to provide their products and services to the US market.
The good news, if any, is that the RFE/denial rates, even though they may be very high historically, seem to be leveling off or decreasing. Our office has witnessed these increased rates (although perhaps not by the magnitude highlighted in the report) and we can share some of our clients’ concerns that one of the main concerns of a US company sponsoring a foreign worker is predictability and fair rules. Our hope is that USCIS will provide clear guidance and consistent application of their own rules and policies to allow fair but consistent application processes.
Our office will be monitoring new developments on this topic and we would be providing relevant updates on our website and via our weekly newsletter. In the meantime, please do not hesitate to consult us if we can be of any assistance.No comments
The Department of State (DOS) has announced that effective December 1, 2011, the U.S. Consulate in Chennai will become the only acceptance center in India for all applications for intra-company transfers under the blanket L category.
The U.S. Embassy in New Delhi and U.S. Consulates in Mumbai, Kolkata and Hyderabad will no longer accept or process applications for this visa category. The blanket L category includes specialized knowledge professionals, executives and managers.
All other visa processing procedures remain unchanged. Spouse and children visas (L2) and individual L visas (L1B and L1A individuals) which continue to be processed at all posts in India—Chennai, Hyderabad, Kolkata, Mumbai, and New Delhi.No comments
The Department of State has announced that as of August 26, 2011, the U.S. Consulate in Mumbai would resume processing of H and L visa stamp applications. The earliest appointments available were for September 6, 2011 and as of today, the Consulate is in normal processing mode.
Earlier this year, in March, the Mumbai Consulate suspend all H and L visa stamp processing due to aging infrastructure. We are delighted to see that the Mumbai Consulate is now able to process H and L visa stamp applications on a regular basis.
Please see the Mumbai Consulate page for more information and details on scheduling an appointment. Also, please do not hesitate to contact us if we can be of any assistance in preparing and filing H or L visa stamp applications at the Mumbai or other Consular sections.No comments
The Department of State announced yesterday that effective March 3, 2011, the U.S. consulate in Mumbai, India would limit the number of applicants it can process due to the building’s aging infrastructure. While a new multi-million dollar facility is under construction (scheduled to open later this year), the current facility of the consulate seems incapable of handling the current number of visa interviews.
As a result, the consulate would not accept new H or L visa stamp application appointments. H and L visa stamp applicants are urged to schedule appointments at the other U.S. consulates in India. Appointments can be scheduled through VFS. Note: H and L appointments which are already scheduled would be honored and processed.No comments
The Los Angeles Times has requested and been able to obtain statistics from USCIS regarding the adjudication rates for H, L, O and P petitions for the Vermont and California Service Centers since Fiscal Year 2008 (FY2008). The statistics are current as of July 2010 and provide a very helpful overview of approval, denial and RFE rates.
California Service Center
RFE Trends. There is much discussion about the California Service Center (CSC) increasing RFE trends. The numbers indicate that for FY2010 (through July 2010), the CSC RFE rate has remained steady or has decreased with respect to H petitions (20%) while it has increased with respect to L (40%), O (38%) and P (44%) petitions. While the RFE rate for H petitions seems to have remained steady over the past few years, the RFE rate for L, O and P petitions seems to have increased substantially.
Also, it should be noted that the numbers and rates of RFEs issued do not describe the entire picture. Anecdotal evidence (supported partially by our office’s direct practice) shows that while the percentages for RFEs for H petitions may have decreased, the length and scope of the RFEs has actually increased.
Approval Trends. CSC shows a slight increase in approval rates for H petitions (82%), while there is a slight decrease in the approval rates for L (73%), O (80%) and P (73%) petitions. The overall approval rate for California for FY2010 is 80.5%.
Vermont Service Center
RFE Trends. The Vermont Service Center (VSC) has noted a significant decrease in RFE rates for H petitions in FY2010 compared to FY2009. For the current fiscal year, the RFE rate for H petitions is 22% compared to 28% in FY2009. The RFE rates for L, O and P petitions are 18%, 17% and 15%, respectively. It should be noted immediately that while the H petition RFE rates for Vermont are similar to the RFE rates in California, the RFE rates in Vermont for L, O and P petitions are substantially lower – by 20-30 percentage points.
The overall RFE rate for VSC is 20.5%, compared to 24% at CSC.
Approval Trends. The approval rates for VSC are fairly consistent over the past three years. There is a notable increase in the RFE approval rates in this fiscal year compared to FY2009. The approval rate for H petitions is 78%, while the approval rates for L, O, and P petitions are 90%, 95% and 96%, respectively. Compared to California, the H approval rate is slightly lower, while the L, O and P petition approval rates for Vermont are 10-15 percentage points higher for Vermont than California.
While the processing statistics for the past three years allow us to draw some conclusions about a service center’s processing trends, it also dispels some myths and rumors founds often on the Internet. The numbers, however, confirm that some petitions, most notably L, O and P, face significantly higher chances of an RFE and significantly lower chances of approval in California.
The most notable difference, in the approval rates for L, O and P petitions between Vermont and California is difficult to explain. In our practice, we review each petition early on with respect to the applicable service center and prepare it accordingly to address any difference in adjudication standards and trends between the Vermont and California Service Centers.No comments
Many of our readers and clients are aware of the recent developments with respect to the “border security bill” passed by Congress and recently signed by President Obama into law (Public Law 111-230).
What Are the New H-1B and L-1 Filing Fees?
Effective immediately, Public Law 111-230 requires the submission of an additional fee of $2,000 for certain H-1B petitions and $2,250 for certain L-1A and L-1B petitions postmarked on or after Aug. 14, 2010, and will remain in effect through Sept. 30, 2014.
Note that not all H-1B or L-1 cases are subject to these new fees. These additional fees apply to petitioners who employ 50 or more employees in the United States with more than 50 percent of its employees in the United States in H-1B or L (including L-1A, L-1B and L-2) nonimmigrant status. Petitioners meeting these criteria must submit the fee with an H-1B or L-1 petition filed:
- Initially to grant an alien nonimmigrant status described in subparagraph (H)(i)(b) or (L) of section 101(a)(15) (H-1B or L-1 cases), or
- To obtain authorization for an alien having such status to change employers.
It should also be noted that this additional fee, where applicable, is in addition to any applicable filing, fraud prevention, ACWIA or premium processing fees.
Revisions of Form I-129 is Underway
Because Public Law 111-230 is effective immediately but USCIS has not released a revised Form I-129 to reflect the new requirements and fees, USCIS advises all H or L filings to clearly describe whether the new fee applies:
USCIS recommends that all H-1B, L-1A and L-1B petitioners, as part of the filing packet, include the new fee or a statement of other evidence outlining why this new fee does not apply. USCIS requests that petitioners include a notation of whether the fee is required in bold capital letters at the top of the cover letter. Where USCIS does not receive such explanation and/or documentation with the initial filing, it may issue a Request for Evidence (RFE) to determine whether the petition is covered by the public law. An RFE may be required even if such evidence is submitted, if questions remain.
Source: USCIS Update: USCIS Implements H-1B and L-1 Fee Increase According to Public Law 111-230 (August 19, 2010)
The H-1B and L visa fee increase is likely to impact a number of companies relying heavily on foreign workers. The law has sparked some controversy and is subject to a number of diplomatic, political and even international trade disputes. However, as it stands now, all H-1B and L filings should undergo an additional level of analysis whether Public Law 111-230 applies.No comments
During a recent AILA conference, the Vermont Service Center (VSC) Director Dan Renaud told the audience that the performance review structure for adjudicating officers has recently changed. Pursuant to the new performance review structure, officers get credit for issuance of Requests for Evidence (RFES), in addition to issuing approvals and denials, under the previous performance review structure.
Anticipating reaction from practitioners and affected individuals, AILA has attempted to clarify this comment with VSC. VSC has clarified this statement. In the VSC’s view, the “credit” for RFES is meant to encourage qualitative RFES. Under the previous policy, VSC was concerned that since examiners were not given “credit” for RFES, examiners were not spending the appropriate amount of time on them, resulting in RFES that were not appropriate. According to VSC, the purpose of giving credit is to improve the quality of RFES by making it something adjudicators have to stop and think about, rather than something to quickly send off. VSC has indicated that the amount of RFES issued has not changed as a result of the policy change.
Inevitably, this comment will trigger a fair amount of speculation and, possibly, accusations that RFES are being issued unfairly. We cannot confirm that RFES are unfair or issued disproportionately; our recent experience indicates that VSCS RFES are fair and well-prepared. We will continue to monitor RFES coming out of VSC and provide updates to our clients and readers.No comments