New USCIS L-1B Statistics Reveal Continued Close Scrutiny

New statistics on L-1B specialized knowledge petitions for Fiscal Years 2012 and 2013 indicate that close scrutiny of this visa classification persists, with even higher rates of denials and requests for evidence (RFEs) than in previous years.

According to USCIS data released pursuant to a Freedom of Information Act (FOIA) request by the American Immigration Lawyers Association, the L-1B denial rate climbed to 35% by Fiscal Year (FY) 2013, a significant upsurge from 6% in FYs 2005 and 2006 and 27% in FY 2011.

RFE and Denial Rates Continue to Soar

The L-1B denial rate climbed to 35%. In addition, a recent report from the National Foundation for American Policy (NFAP) notes that petition denials comprised over one-third of 2013 cases, including extensions where the foreign national was already working in the United States pursuant to a previous L-1B approval from an immigration official.

Nearly half of all petitions received Requests for Further Evidence (RFEs). Although this figure is a decline from the startling 63% in FY 2011, it shows that USCIS continues the pattern of requiring extensive L-1B documentation. Petitioning employers grapple with RFEs that frequently press for detailed information on eligibility factors that do not apply to the situation or depart from long-held agency standards.

Employers Face Challenges to Business Operations

The NFAP report underscores the pernicious impact to petitioning employers, with some 80% of L-1B petitions denied or delayed by USCIS adjudicators in 2013. Even if the denial rate is eased, a sustained high RFE rate disrupts business operations, causes uncertainty in planning, and creates additional costs from project delays, legal fees and contract issues.

Perhaps as a result, the volume of L-1B petitions filed has decreased, 40% since FY 2006 and almost 10% since FY 2011. The data also indicated a growing divergence in approval and denial rates between the two USCIS Service Centers in California and Vermont.

Current L-1B Petition Adjudication Trends Constrict the Statutory and Regulatory Standard

For many years, USCIS has taken an increasingly rigid position on what qualifies as “specialized knowledge,” asserting that the definition is narrowly drawn and limited to “key” personnel whose knowledge is not widely held within the employing organization. This stance, which deviates from well-settled law, regulations, legislative intent and other agency guidance, has brought about the high denial rate.

NFAP notes that adjudicators might deny an L-1B petition if it appears that more than three to five people within the organization have the specialized knowledge, even though nothing in the statute or regulations sets this bright line rule. In today’s global economy, however, restricting specialized knowledge to such a small number of employees would hamper a company’s business and in many cases make its operations infeasible. These hindrances to global mobility harm American innovation and job creation efforts.

Fragomen and allied groups in the business immigration community continue to advocate for a return to long-established L-1B adjudication standards. In March 2012, the then-director of USCIS stated that new, modernized guidance would be issued, even as restrictionists in Congress – Senators Charles Grassley (R-IA) and Richard Durbin (D-IL) – sought for no change; but no such guidance has been published two years later.

What This Means for Employers

The L-1B statistics continue to paint a clear picture of the challenges that petitioning companies encounter. Although a separate report previously claimed that USCIS adjudicators are pressured to approve cases, the data reveal an environment hostile to the global interests of L-1B employers.

If you have any questions, please do not hesitate to contact your designated Fragomen professional.