What to do if facing a denied L1 visa application
The US L1 visa is a valuable tool for multinational companies looking to deploy specialist talent to US-based operations. It offers many benefits both for the employer, seeking to achieve commercial advantage, and for employees who can gain the right to work in the USA and potentially become eligible for a US Green Card.
However, the L1 visa refusal rate has notably increased under the current US administration. This has impacted business and workforce planning strategies as the prospects of attaining the L1 visa have become less certain. Stringent eligibility criteria apply and applications must evidence conclusively to the adjudicator why the US-based role cannot be performed by a US-resident worker.
For petitioning companies and employees, this means it has become significantly more challenging to secure an intracompany transfer visa to the US. It’s commonly used by big firms and recently often by tech firms to transfer employees to existing businesses but can also be used by smaller firms to establish a presence in the US.
This article will look at some of the reasons why an L1 visa is denied and what you can do if facing a denied L1 application.
Common grounds for L-1 visa refusal
The L1 visa is a non-immigrant visa that enables companies to send foreign managers or specialist employees to work in their established US operations or to open a new branch in the country.
There are two categories of the L1 visa:
- L-1A: This covers managers and executives and to qualify you must show that you supervise employees in a department or major business function. If you are an executive you must demonstrate you make decisions on a large scale without significant input from superiors.
- L-1B: This covers employees who are indispensable to the company due to their specialist knowledge. This knowledge must be shown to be vital to the function of the company’s products or systems.
The main eligibility requirement on the employee’s behalf is that they have worked for the business for one year in the three preceding years. While it appears on first sight the L1 seems like a simple way to gain entry for workers into the US, in recent years President Trump has introduced measures to make the entry criteria for L1 visas more strict in an attempt to show favor to resident workers. A policy that is seeing more applications for L-1 visas denied.
Specialized knowledge assessment
One of the most common and increasing reasons why an L1 visa is denied is down to the assessment of specialised knowledge. As previously mentioned, applications are being more heavily scrutinised under the Trump administration and you will need to provide evidence that the specialist knowledge is both invaluable to the company and cannot be provided by an American employee. If this cannot be proved the USCIS will rule that the visa application must be denied.
If you are applying for an L1-A as a manager or supervisor you will be required to have a number of employees that you oversee. The visa regulations however do not specify the number of employees you need to supervise so this is again down to the interpretation of the officer assessing your petition. With increasing numbers of l1 visas being denied you should look to manage at least 5 employees.
Another major reason an l1 visa is denied is when the wages proposed for the visa applicant are significantly more or less than the standards for that industry in the US. Employers should carefully assess the prevailing wages based on industry and state-specific location.
Business growth is not feasible
It can be tempting for employers to exaggerate their business plan to indicate unrealistic future success. Now the USCIS is scrutinising applications in increasing detail this is a flawed plan and they will assess your plan against industry standards and local case studies. Inflated business growth projections with arouse suspicion and increase the chance of your l1 visa being denied.
Documents submitted incorrectly
The application is involved and gathering the documents together correctly can be time consuming. However, a simple error or mistake on your application could cause your visa to be rejected. It could be an incorrect job title or inconsistent job descriptions, sending the application to the wrong place or using the wrong delivery method. This is why many people applying for l1 visas choose to enlist the help of an immigration law expert.
Lack of evidence
The US government released a memo in 2015 that instructed visa adjudicators to ensure l1 applications had a “preponderance” of evidence. By that they mean that the applicant must demonstrate that all their claims relating to eligibility are more likely true than not. While this doesn’t mean all doubt must be removed it does mean applicants should do everything in the application to show the claims are probably true.
What to do if your L1 visa is denied
If you, like many others, have your L1 visa denied, the first step will be to understand why your visa was refused. What does the refusal state are the grounds, and are thse valid? Was there an error in your application? Has USCIS made a factual error in its adjudication?
To challenge the decision to refuse your application, you would either appeal directly with the Administrative Appeals Office (AAO) or alternatively through a US District Court.
If you appeal the decision through the AAO this will generally take six months or more and in most cases will simply result in the confirmation of the previous denial issued by USCIS.
In some cases, you will however need to first appeal through the AAO before you are granted the opportunity to appeal through a US District Court. But there are some cases where you can go directly down this route. To do this you would need to demonstrate that the l1 denial through USCIS was either arbitrary, capricious or irrational.
These classifications are arbitrary and it is recommended that to stand the best chance of overturning an L1 visa denial you seek the specialist advice of an expert in US immigration law.
You may also consider alternative immigration options. For example, if your business has an established office or affiliate active in the US already you could consider applying for an H-1B visa. This is a visa that requires the applicant to hold a bachelor’s degree and while the application process is still strict the requirements are not as stringent as the specialized knowledge requirements of the L1 visa. Again, taking professional advice will ensure full consideration is given to all options in the circumstances.
Do you have a question about a refused L1 visa?
An L1 denial can be extremely frustrating, and can cause unwanted delays and expense for employers.
It is always recommended to give the initial application full attention to improve prospects of satisfying eligibility against heightened criteria.
If you have received a refusal, take professional guidance quickly on your options and next steps, which could involve filing a new petition or pursuing a different immigration route.
NNU Immigration are specialist US immigration attorneys. From our central London base, we support companies from across the globe with L-1 visa petitions, providing guidance to the employer and employee through the petitioning process, and also any refusals or appeals.
If you have a question about the L-1 visa application process or eligibility requirements, please contact us.
This article does not constitute direct legal advice and is for informational purposes only.
Last updated: 14 January 2020