L-1B Petition Denial Rates Skyrocket (Especially for Indian Nationals)

A recent report by the National Foundation for American Policy (NFAP) focused on the denial rates for the L-1B visas.  In its March 2015 report NFAP analyzes denial rates over a number of years and for a number of different beneficiaries, from a variety of countries.   The conclusion is that the denial rate for L-1B petitions is at an all-time high, with about 35% of all L-1B petitions being denied.   For Indian nationals, the L-1B denial rate is an astonishing 56%.

Notable Points of the L-1B Denial Analysis

The overall denial rate for the 2014 fiscal year (FY2014) is 35%, a five-fold increase from the 7% denial rate in FY2007.   The denial rate for L-1B petitions to transfer employees from Indian origin is 56%,  while it is 13% for all nationals of all other countries.   Canadians are at 4%, British nationals are at 16%.

L-1B extension petitions for workers who are already in the U.S. (and were granted L-1B once) have a higher denial rate (41%) than initial applications  (32%)   There is no clear explanation or reason behind this — presumably, once USCIS has granted an L-1B visa initially, an extension should be easier (in relative terms) to get approved.   Apparently, this is not the case.

Requests for Evidence (RFE)s have continued to be at a very high rate – 45% of all L-1B petitions face an RFE, often requiring a very lengthy and time-consuming response.   Some may think back to FY2004 when only 2% of the L-1B petitions faced an RFE.

Conclusion

The NAFP analysis, based on date obtained from USCIS under the Freedom of Information Act (FOIA), provides a fairly detailed overview of the challenges ahead of L-1B employers, especially those who wish to bring foreign employees from India.    Our office witnesses first-hand the extremely time-consuming RFEs for a number of L-1B petitions and we share the concerns of our L-1B employer clients who face severe uncertainty in bringing key personnel to the U.S. on L-1B.

The concerns are particularly acute over the last two to three years where the annual H-1B cap has been exhausted over the first five days and has limited the options for bringing qualified foreign employees to the United States.  With the H-1B cap gone in five days and extremely challenging L-1B  adjudication process, foreign employers find in increasingly difficult to be able to bring talent to the U.S.

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