A National Foundation for American Policy report has found that the denial rate for L-1B applications to transfer high-skilled employees to the U.S. has increased to an historic high of 35% in 2014 based on data obtained from the government. This is up from a denial rate of just 6% in 2006.
The L-1B visa category requires a U.S. employer to establish that their employee has worked with one of their qualifying entities abroad for at least one year in the past three years, and that they have “specialized knowledge” of the company’s product or an advanced level of knowledge of processes and procedures of the company. The reasons for denial are varied and constantly changing, making it difficult to identify patterns that can then be addressed in new L-1B applications. In response to this uncertainty and inconsistency, the government recently issued its long-awaited policy guidance on the adjudication of L-1B applications. While there are concerns that their latest memo does not entirely resolve the issues, we hope that stakeholder comments (being accepted until May 8) will help. The government intends to apply the policy memorandum as of August 31, 2015.
In the meantime, those clients looking to transfer Indian national employees in particular should be most wary of the current state of play. The rate of denials for Indian nationals was an astounding 56% between 2012 and 2014 compared to just 13% for other country nationals.
Interestingly, the number of L-1B applications dropped 23% from 2012 to 2014. L-1B denials can have a real impact on the workforce, innovation and production of our clients and their ability to compete in an increasingly global economy. Unfortunately, some employees are now staying put in their home countries rather than coming to the U.S. to work alongside their U.S. colleagues. This not only hurts our clients specifically, but the U.S. economy as a whole.
Additionally, time-consuming Requests for Evidence (RFE) were issued on almost half of all L-1B applications in 2014. While employer groups say their members generally find cases are approved after complying with the RFE, the cost and delay can hurt services delivery and product development, and cause great anxiety for affected employees.
Surprisingly, the majority of L-1B denials also occurred on the adjudication of L-1B extensions (41% in 2014) rather than initial applications (32% in 2014).
Despite the apparent doom and gloom, we hope that the government’s policy memorandum, once settled, will go a long way to reducing the number of RFEs and denials in this much-needed visa category. In the interim, Dayzad Law Offices continues to employ successful strategies for clients considering an L-1B transfer for employees. We will work with you to fully assess each case and determine the best approach, whether that be an L-1B application or a stronger alternative.