There was a time, FY 2006, when 92% of all L-1B Specialized Knowledge visa petitions were approved.
In FY 2014, the L-1B approval rate is down to 65%.
A study published by the National Foundation for American Policy cites the chilling USCIS statistics as to the adjudication of L-1B applications over the course of time—material changes in the numbers are reported, with no regulatory change.
The L-1 visa status is for intra-company transferees, individuals who are being transferred from a company’s affiliate, branch, subsidiary or parent overseas to the US to perform executive, managerial or “specialized knowledge” work in the US. The L-1A is for transferred executives or managers; the L-1B is for those with “specialized knowledge”. The NFAP report focuses on L-1B visa petitions, but that does not mean that L-1A applications have not suffered from similar trends.
Based on data from the US Citizenship and Immigration Service (USCIS), the report’s revelations include:
* USCIS L-1B denial rates are higher for specialized knowledge employees who are already in the US and seeking to extend their status (41% in FY14) than for initial L-1B petitions (32 %).
* The denial rate for Indian nationals was 56% for FY2012-14, as compared to Canadian nationals who were denied at a rate of only 4% during the same time period.
*The rate of issuance of Requests for Evidence (RFEs) in FY 2014 was 45%, as compared with only 2% in FY 2004.
As to the RFEs, AILA’s Bob Deasy is quoted as follows: “What is most concerning is that RFE and denial templates and rationales are developed behind the scenes in a policy vacuum; moreover, hyper-exacting evidentiary and documentary demands made by USCIS undermine the principle of ‘totality of the evidence’ and the preponderance of the evidence standard.”
The report concludes: ”The significant increase in denial rates and requests for evidence in recent years illustrates that USCIS adjudicators have made it difficult for companies to transfer their own employees within a company to work in America. In a highly competitive global marketplace, the consequence is that companies become more likely to move out of the United States-or to invest in America in the first place-to avoid the difficulties of the U.S. immigration system.”
Transfer with caution!
Robert S. Whitehill is the Chair of the Immigration Practice Group at Fox Rothschild LLP. He may be reached at firstname.lastname@example.org.