February 15, 2012 - The National Foundation for American Policy (NFAP), a non-profit, non-partisan public policy research organization, recently released an analysis of U.S. Citizenship and Immigration Services (USCIS) data on the number of H-1B and L-1 petition denials and requests for evidence (RFE) issued by the Agency in each fiscal year from 2003 to 2011. The NFAP’s analysis of the new data obtained from USCIS reveals the agency has dramatically increased denials of L-1 and H-1B petitions over the past four years. The results reveal a marked increase in the number of H-1B and L-1 denials beginning in FY2008 and continuous increase through FY2011, with a considerable spike in FY2009. It is important to note that during this period there has been no material change in the regulatory criteria for H-1B and L-1 status approval.
Among the findings contained in this NFAP analysis of official USCIS data were the following:
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Denial rates for L-1B petitions filed with USCIS, used to transfer employees with “specialized knowledge” from a company abroad to its affiliate in the United States, rose from 7 percent in FY 2007 to 22 percent in FY 2008, despite no change in the law or relevant regulation. The denial rates stayed high for L-1B petitions at 26 percent in FY 2009, 22 percent in FY 2010, and 27 percent in FY 2011. In addition, 63 percent of L-1B petitions in FY 2011 were at least temporarily denied or delayed due to a Request for Evidence.
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The Request for Evidence rate for L-1B petitions to transfer employees with specialized knowledge rose from 17 percent in FY 2007 to 49 percent in FY 2008, and, as noted, reached an astonishing level of 63 percent rate in FY 2011.
BAL Comment: The H-1B and L-1 visa categories were created by Congress in recognition of the diverse array of skills and experience vital in keeping U.S. companies competitive among their global counterparts. The dramatic increase in denial and RFE rates at USCIS makes it more difficult for skilled foreign nationals to work in the United States and for employers to transfer skilled employees to the U.S. Accordingly, employers should plan ahead and continue to work with their BAL attorneys in the development of strategy to effectively address the increased scrutiny of L-1 and H-1B petitions at USCIS.
- Berry Appleman & Leiden LLP