Rami D Fakhoury March 16 2012 USCIS data reveals high denial rates for L-1 and H-1B petitions Fakhoury Global Immigration | Employment & Immigration - USA Rami D Fakhoury Employment & Immigration Introduction Denial rates for L-1B petitions Denial rates for H-1B, L-1A and O-1A petitions Requests for evidence Comment IntroductionAnalysis of new data obtained from US Citizenship and Immigration Services (USCIS) reveals the power that USCIS adjudicators possess to approve or deny petitions to work in the United States. The significant increase in denial rates and requests for evidence in the past four years illustrates that USCIS adjudicators or others at the agency have made it far more difficult for skilled foreign nationals to obtain US work visas. In a highly competitive global marketplace, this is causing companies to consider moving more work out of the United States to avoid the difficulties of the US immigration system.The wait for green cards (ie, permanent residence) can span years or even decades, which means that obtaining temporary status is essential for international students, skilled foreign nationals abroad and others seeking to work legally in the United States. The primary temporary categories are: H-1B, for foreign nationals with the equivalent of a bachelor's degree or higher working in a specialty occupation; L-1, which allows an employer to transfer an employee into the United States who has worked at least one year abroad for the employer; and O-1A, which is used (less commonly) for "individuals with an extraordinary ability in the sciences, education, business, or athletics".(1)L-1B status to transfer an employee with specialised knowledge into the United States can be valid for up to five years, while L-1A status to transfer a manager or executive can be valid for up to seven years. 'Specialised knowledge' for an L-1B petition is defined by law as "special knowledge of the company product and its application in international markets" or "an advanced level of knowledge of processes and procedures of the company".(2)To transfer an employee with specialised knowledge into the United States, in most cases the employer must first obtain an individual petition from USCIS and then use that approved petition to obtain a visa from a US post abroad for the employee to gain entry to the United States. Some employers qualify to apply for 'blanket' petitions from USCIS, which allow employees to file directly for L-1 visas with consulates abroad. USCIS must also generally approve a petition for H-1B and O-1A visas before an individual can change status inside the United States (eg, from an international student to a H-1B worker).Denial rates for L-1B petitionsDenial rates for L-1B petitions rose from 7% in 2007 to 22% in 2008, despite no change in the law or regulations on L-1Bs. The denial rates stayed high for L-1B petitions at 26% in 2009, 22% in 2010 and 27% in 2011.(3) These figures include denials for both new (initial) L-1B petitions and extensions of individuals already working in the United States under L-1B status. Despite requests for additional data, USCIS has not provided a breakdown of approvals and denials for nationals by country for both initial and extension (renewal) cases. However, both information from companies and the available USCIS data indicate that denials are more prevalent for employees born in India and, for reasons that are unclear, appear to be higher for extension/renewal cases for L-1B status.Many companies believe that denials either at USCIS or at consulates, particularly those involving Indian nationals, share the common attribute of new (unwritten) arbitrary standards that go beyond the statute and regulations. Employers contend that it has become difficult to plan projects and personnel placement in light of the shifting adjudications landscape. The uncertainty means that employers are unclear as to which cases are likely to be approved, which are likely to be denied and which are likely to undergo a lengthy request for evidence.Some employers claim that applicants are occasionally rejected for L-1B status if a particular consular officer or adjudicator believes that a company should not have more than three to five people with specialised knowledge in a particular area. Nothing in the statute or regulations indicates that specialised knowledge need be restricted to a handful of people in a company. In companies employing thousands of people in highly specialised fields and product lines, it would not be feasible to operate in most circumstances if specialised knowledge were restricted to three or four people at a time in a specific subject area, product or service.Another type of denial, employers allege, comes from USCIS adjudicators and consular officers requiring that a standard of extraordinary ability be met to permit the transfer of employees with specialised knowledge into the United States. For example, requests for evidence for L-1B petitions have included asking whether the individual has obtained a patent. Companies note that even patent holders have been denied L-1B petitions under the new, arbitrary standards.Increase in L-1B denials for Indian nationalsThe increase in denials may largely be a case of dramatic increases in denials of Indians, much more so than nationals of any other country. In 2006 the L-1B denial rate of new (initial) petitions for Indians was 1.7%, falling to 0.9% in 2007 and then rising to 2.8% in 2008. However, in 2009 the denial rate of new L-1B petitions for Indians skyrocketed to 22.5%, even though there had been no change in the law or regulations between 2008 and 2009. The denial rate remained high in 2010 at 10.5%, well above its historic levels, and rose to 13.4% in 2011.(4) As another indicator of the significant shift in adjudications, USCIS denied more new L-1B petitions for Indians in 2009 (1,640) than in the previous nine fiscal years combined (1,341 denials between 2000 and 2008).Concern that L-1B petitions for Indians have been singled out might be alleviated had the data shown that other countries have experienced similar increases in the rate of denial for L-1B petitions. However, while other foreign nationals experienced an increase in L-1B denial rates starting in 2009, those denial rate increases were far lower than that of Indian nationals. L-1 visa issuance declined at US posts in India in 2011, but rose overall for the rest of the world.(5)The next seven highest filing countries of origin for L-1 petitions in recent years, after India, have been Canada, China, France, Germany, Japan, Mexico and the United Kingdom. In 2008 the 2.8% denial rate for new L-1B petitions for Indians was similar to that of the other seven countries: China's denial rate was 2.1%, the United Kingdom's rate was 2.7% and France – at 3.8% – had a higher rate of denial than India. All that changed in 2009.From 2008 to 2009, the denial rate for new L-1B petitions for employees of Indian origin increased eightfold, from 2.8% to 22.5%, while the denial rate for Canadians rose only from 2% to 2.9%. The denial rate doubled or tripled for China, France, Germany, Japan and the United Kingdom in 2009, but all within a range of 4.1% to 5.9%, compared to India's denial rate of 22.5%. Moreover, in 2010 the denial rate for France, Japan and the United Kingdom dropped back to a level similar to the denial rates for those countries in 2008. Only applicants from Mexico (for one year) experienced an increase in denial rates for L-1B petitions similar to that of Indians.Declining new L-1B receipts in response to denialsA November 2011 policy brief of the National Foundation for American Policy utilised official data from the State Department and found that:"The number of L-1 visas issued at U.S. posts in India declined by 28 percent from 2010 to 2011...The official data from the State Department show that L-1 visa approvals went from 35,896 in FY 2010 to 25,898 in FY 2011, a drop of approximately 10,000 visas."(6)As noted earlier, increased delays, denials and inconsistent processing of L-1 applications have become major concerns for employers in the United States.The USCIS data provides at least a partial explanation for the L-1 visa issuance decline in 2011. After consecutive years of high denial rates from USCIS adjudicators, it appears that many employers decided against pursuing L-1 visas, either keeping the work abroad or, in some cases, applying for a different visa for the individual.(7) According to USCIS, the number of receipts for new L-1B petitions for Indian professionals fell by nearly 40% between 2010 and 2011. The State Department has not provided data on denial rates, which makes it impossible to know the extent to which visa denials at US posts abroad contributed to the decline in the number of L-1 visas issued in 2011.Denial rates for H-1B, L-1A and O-1A petitionsDenial rates for H-1B petitions for all nationalities increased from 11% in 2007 to 29% in 2009. The denial rates remained higher than the historical pattern for H-1Bs, at 21% in 2010 and 17% in 2011. These figures include both renewals and new (initial employment) H-1Bs.Denial rates for L-1A petitions increased from 8% in 2007 to 14% in 2011.Denials for O-1A petitions rose from 4% in 2008 to 10% in 2009. The denial rate increased again to 11% in 2010 and stood at 8% in 2011.Requests for evidenceAlong with increased denials have come skyrocketing rates of requests for evidence, which USCIS adjudicators use to obtain more information in lieu of making an immediate decision on a petition. Employers note that a request for evidence can result in months of delays for an application, thereby affecting costs, potentially delaying projects and harming the ability to fulfil terms of a contract.If the request for evidence rate remains high, it will negate much of the benefit of improvement in denial rates, since employers must still potentially undergo months of uncertainty and additional costs without decisions made on the transfer or employment of key personnel.The request for evidence rate for L-1B petitions rose from 17% in 2007 to 49% in 2008 and reached the astonishing level of 63% in 2011.(8) As recently as 2004, USCIS adjudicators requested additional evidence for L-1B petitions in only 2% of cases.The request for evidence rate for L-1A petitions has seen a steady rise, increasing from 4% in 2004 to 24% in 2007 and up to 51% in 2011.For H-1B petitions, the request for evidence rate rose from 4% in 2004 to 18% by 2007, to a high of 35% in 2009. In 2011 the rate was 26%.For O-1A petitions, the request for evidence rate increased from 1% in 2004 to 13% in 2007, then more than doubled to 28% in 2009 before falling to 20% in 2010 and rising again to 27% in 2011.CommentEmployers have noted that the delays and uncertainty created by increased denials and requests for evidence for L-1 and other visa categories have harmed growth, delayed projects and inhibited product development in the United States. Companies use L-1 visas to transfer temporarily into the United States individuals who are already employed by them in another country. It is unclear, given the qualifications required to gain L-1 status, as to why moving an experienced employee from one location to another would mean a job loss for a US worker, which is a concern that some express.To qualify, L-1 visa applicants must have worked abroad for the employer for at least one continuous year (within a three-year period) before filing a petition. Moreover, there is not a fixed number of jobs in the United States, and additional personnel providing managerial or specialised expertise can help a company operating in the United States to expand or become more competitive.In the past, the official government response to the issuance of denials has been to suggest that since the United States issues many visas in general in India and Indians receive a large percentage of the L-1 visas and H-1B petitions issued each year, there is nothing wrong with the petition and visa approval process. However, simply because India has a large, growing pool of skilled professionals whom employers find desirable to hire (or transfer) tells us nothing in particular about whether individual cases are decided properly and whether standards for approval have changed substantially.In November 2011, in response to a question from the National Foundation for American Policy about Indian refusal rates on L-1 cases, a spokesperson for the Bureau of Consular Affairs replied in writing:"On the question about decline, we have heard concerns from some companies that they are experiencing high refusal rates. We have seen an uptick in unqualified applicants in this category due to a much broader use of complex 'specialized knowledge' provisions as the basis of L-1 application, which may account for the perception of increased refusals."(9)The data from USCIS demonstrates the large increase in denial rates for Indian applicants and others for L-1B, H-1B, L-1A and O-1A petitions. In these categories the denial rates starting in 2008 or 2009 have increased significantly, with no corresponding change in the immigration law or relevant regulations. That is not a matter of mere perception.For further information on this topic please contact Rami D Fakhoury at Fakhoury Law Group PC by telephone (+1 248 643 4900), fax (+1 248 643 4907) or email ([email protected]).Endnotes(1) USCIS.(2) As cited in Daryl Buffenstein and Bo Cooper, Business Immigration Law & Practice, Vol 1 (Washington, DC: American Immigration Lawyers Association, 2011), p 863.(3) All data in this report is official data from USCIS, with the National Foundation for American Policy providing additional analysis. The numbers in the report are from a data run of Citizenship and Immigration Services Centralised Operational Repository (CISCOR). Data is calculated by USCIS by measuring approvals and denials in a category in a year. USCIS data is labelled by fiscal year, but CISCOR uses the calendar year for data on I-129 petitions for L-1, H-1B and O-1 petitions. Blanket L petitions handled by consular officers are not included in the data.(4) The data on country-specific approvals and denials, which focuses on (new) initial applications for L-1 visas, was run separately by USCIS and may not correspond precisely with the other data run highlighted in this report (overall denial rates, not country-specific), which includes renewals and was tabulated on a calendar-year basis. According to the Department of Homeland Security, denial rates are calculated by utilising the number of approvals and denials in a fiscal year; the number of receipts in a calendar year is not used because cases received in one fiscal year may not be processed in the same fiscal year. Also, USCIS data is based on the country of birth of the applicant. While this naturally corresponds to the location of the foreign national in the vast majority of cases, there are instances where an individual born in one country may not be applying for a transfer for work from the country of birth. These factors should not affect USCIS data that uses the same methodology over the time period examined.(5) L-1 Visa Approvals Decline Significantly in India in 2011, National Foundation for American Policy brief, November 2011.(6) Id.(7) Some employers may have used a blanket petition.(8) The request for evidence rate is the percentage of applications in a year in which adjudicators formally requested additional evidence from an employer.(9) Response received via email from spokesperson for the Bureau of Consular Affairs, November 1 2011. Emphasis added.