On August 28, 2015, the U.S. Citizenship & Immigration Services (“USCIS”) released its performance data related to the adjudication of L-1B “specialty knowledge” worker petitions through the end of the third quarter of Fiscal Year 2015. The L-1B visa is an important visa that enables multinational companies to transfer workers to the U.S. who have been employed abroad with a qualifying, related entity if the worker has been employed in a position that requires noteworthy or advanced knowledge of the company’s products and procedures.
A review of the data shows that since the start of Fiscal Year 2015 (i.e. October 1, 2014), USCIS denials of L-1B petitions are on the decline, with the denial rate dropping from 30% to approximately 20%. The fact that one fifth of all L-1B petitions filed can expect a denial is still sobering. However, the downward trend is somewhat encouraging considering that according to data for Fiscal Years 2003 through 2011 denial rates had increased 500% from a low of 6% in Fiscal Years 2005 and 2006 to a high of over 30%.
One likely explanation of this downward trend in denials stems from President Obama’s executive order signed in November of 2014. The executive order included a directive to USCIS to implement better guidelines for its adjudicators to use when evaluating L-1B petitions and to create a more uniform and predictable standard. On August 17, 2015, USCIS released a new L-1B Adjudications Policy Memorandum. While the new policy memorandum appears to adopt a relatively restrictive definition of “specialized knowledge”, it at least does so in a more predictable way. The jury is still out on how USCIS will go about implementing the policy memorandum. It is our hope that USCIS will continue to educate its adjudicators on the importance of the L-1B visa program as well as on Congress’ intent to facilitate knowledge transfer from key employees. It is also our hope that the related government agencies continue to evaluate their standards to ensure the fair treatment of workers who drive economic innovation.