Increase in L1B Denials, Particularly for Indian Nationals

The National Foundation for American Policy (NFAP) recently released a study that documents and analyzes the dramatic increase in the percentage of L1B petitions denied by the U.S. Citizenship and Immigration Services (USCIS) in recent years. The NFAP finds that the situation is even worse for Indian nationals, who appear to be receiving the brunt of these denials. As the NFAP explains in the study, the cause for this continued increase in denial rates is the manner in which such cases are adjudicated, and is not connected to any actual changes in the laws or regulations governing the L1B category.

L1B Intracompany Transferees With Specialized Knowledge

The L1B category applies to certain employees of multinational companies. The category is limited to those employees who have worked for at least one continuous year, out of the past three years, for a company abroad that is related to the petitioning company in the United States. To qualify, the employing entity must demonstrate that the employee possesses “specialized knowledge.” More information about the requirements for the L1B category can be found in the MurthyDotCom NewsBrief, Attempting to Define Specialized Knowledge for L1B Approvals (11.Jun.2013).

Denial Rate Has More Than Tripled Since 2013

The spike in L1B denial rates began in 2008, with a rate of 22 percent. In the five preceding years, the denial rate was 10 percent or less. By 2012, the denial rate soared to 30 percent, followed by a disturbing 34 percent denial rate in 2013.

USCIS Promised New Guidelines in 2012, But Is Yet to Deliver

The NFAP report further notes that, in early 2012, the USCIS agreed to develop updated guidance for adjudicators to clarify the standards for establishing specialized knowledge. But, the guidance is yet to be issued, leading many to conclude that this lack of clarity continues to be one of the reasons for the inconsistent manner in which L1B cases are adjudicated by the USCIS.

RFEs Issued for Nearly Half of All L1B Petitions Filed

As would be expected in a category with a high denial rate, the USICS has been issuing requests for evidence (RFEs) on an extraordinarily high percentage of L1B petitions. In 2013, RFEs were issued on 46 percent of all such petitions filed. RFEs increase the overall processing time for L1B cases, not to mention added work and expense for the petitioner.

Particularly Difficult for Indian Nationals

The study reveals that the problems faced in the L1B category are particularly acute for Indian national employees. The NFAP reports that, of the petitions filed on behalf of Indian nationals, a disproportionate number are being denied, compared to the denial rate for cases filed on behalf of citizens from other countries. This was based on country specific data available for 2009-2011. Such data is not available for 2012 and 2013; however, anecdotal information garnered through the study indicates that the problem persists.

USCIS Should Issue Clear Standards for L1B Adjudications

The USCIS needs to develop clear, uniform, and realistic standards for establishing the criteria of “specialized knowledge” for the L1B category. These standards should reflect modern business practices regarding the types of specialized knowledge acquired by a company’s employees, and the need of multinational companies to have access to such employees, when and where needed. The Murthy Law Firm has extensive experience in representing multinational companies in L1B cases. Companies who need assistance in addressing issues related to the L1B process should consider contacting the Murthy Law Firm for assistance.

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Disclaimer: The information provided here is of a general nature and may not apply to any specific or particular circumstance. It is not to be construed as legal advice nor presumed indefinitely up to date.