Fiscal Year (FY) 2014 saw another increase in the rate of USCIS requests for evidence (RFEs) and denials in L-1B specialized knowledge filings, according to a new report from the National Foundation for American Policy (NFAP). Some 45 percent of all L-1B petitions received an RFE and 35 percent were denied in the last fiscal year.
Denials and RFEs rose even as the number of L-1B petition filings dropped. In FY 2012, some 18,735 L-1B petitions were filed at USCIS Service Centers. In FY 2014, that number fell to 14,515.
Denial Rates Climb, Especially for Extensions
The rise in denials has been steep over the last several years, increasing nearly sixfold since FY 2006, when just six percent of L-1B petitions were denied. In FY 2014, extensions had a higher rate of denial than initial petitions, 41 percent versus 32 percent for initial filings.
The report also shows great disparity in rates of denial across beneficiary nationalities. Petitions filed on behalf of beneficiaries from India saw denial rates of 56 percent, while those filed on behalf of beneficiaries from China were denied at a rate of 22 percent. The average rate of denial for beneficiaries from all other countries was roughly 13 percent.
RFE Rates Fall from All-Time Record But Remain High
For the last three fiscal years, RFE rates for L-1B petitions have hovered around 45 percent on average, after a high of 63 percent in FY 2011. In FY 2014, the RFE rate was 49 percent for initial L-1 petitions and 40 percent for extensions. Filings on behalf of Indian beneficiaries were RFE’d at a rate of 65 percent and those filed on behalf of Chinese beneficiaries had a 44 percent RFE rate between FY 2012 and FY 2014.
What This Means for Employers
The NFAP report reflects the challenges employers have long faced when petitioning for L-1B specialized knowledge employment with USCIS. Though the report does not analyze blanket L adjudications at U.S. consulates, employers face hurdles with that program as well.
The report comes as USCIS finalizes a long-awaited guidance memorandum on the specialized knowledge standard for L-1B employees. Though the contents of the guidance will not be disclosed until the memo is published, there are indications that it provides agency adjudicators with modernized interpretations of the legal standard.
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