With all of its advantages, it’s no wonder why the L-1 visa is such a popular way to work in the U.S. However, just like every other visa classification, not everyone who applies gets approved. With the denial rates rising each year, it pays to be informed. If you have had your visa denied or are looking to prevent a future L-1 visa denial, then here are some of the reasons you may not get your visa approved.
Top 5 Reasons for L-1 Visa Denials
Below are some of the most common reasons for an L-1 visa denial. Keep in mind that L1B petitions tend to get more heavily scrutinized than other business-related nonimmigrant visas so it’s highly recommended to have an immigration attorney handle your case.
1 – Failure to Demonstrate Eligibility Requirements
Each of the two categories of the L-1 visa has its own specific requirements that both the employer and employee must fulfill. Failure to demonstrate that you both meet the requirements can lead to denial.
For example, to qualify for an L-1 visa, the U.S. employer must be any of these: a parent company, subsidiary, branch, or affiliate of the foreign company. The company must also be doing business in the U.S. and in at least one other country for the duration of the L-1 visa beneficiary’s stay in the United States. “Doing business,” according to the USCIS, means the company is engaged in a systematic and continuous provision of goods and/or services. Meaning it is not enough to just have the mere presence of an office or agent in the U.S. and abroad.
On the part of the employee, the USCIS has stated that an L-1A visa applicant must be seeking to enter the U.S. to serve in either an executive or managerial capacity. Again, there are different definitions for what qualifies as an executive or manager as far as the L-1 visa is concerned.
Executive capacity means the employee has or will have the ability to make decisions on a large scale with little to no supervision from those higher in the organization.
Managerial capacity means the employee has or will have the ability to oversee and make decisions concerning the jobs of other employees, as well as manage the company as a whole, or manage a department, function, or subdivision of the organization.
2 – Failure to Demonstrate Specialized Knowledge
Specialized knowledge is one of the major grounds that many employment visas, including the L-1, are denied, especially recently under the Trump administration. The assessment standards for the U.S. work visa requirements are being raised to ensure that resident workers are favored over foreign job applicants.
As an L-1 visa beneficiary, you will need to demonstrate that you possess specialized knowledge that is invaluable to the organization and which cannot be provided by a citizen or legal permanent resident worker. Failure to do this can result in denial.
Keep in mind that it is not enough to meet these requirements; your petition must be prepared in a way that overwhelmingly reflects that you possess the knowledge. This is why it is important to work with an immigration lawyer to help you gather and prepare your supporting evidence accordingly.
3 – Salary Structure
Wage structure is another factor that can stand as an obstacle to an L-1 visa as well as other work visas. If there is a significant variance (either below or above) between the proposed salary in your visa application and the standard range for the industry, your visa may be denied on this ground. To avoid this, the sponsoring employer will need to assess the prevailing wages that apply to their specific industry vis-à-vis the geographical location of the proposed employment.
4 – Incorrect or Missing Supporting Evidence
Just like every visa application, the supporting evidence you submit will form a major part of the decision-making process by immigration officials. If you fail to include an important document or give incorrect information at any stage of your visa application, that may lead to your L-1 visa denial. Some errors you will need to carefully avoid include entering an incorrect job title or job descriptions, using an inappropriate delivery method, or sending your visa application to the wrong address.
5 – Business Growth
More than other nonimmigrant work visas, officials adjudicating L-1 visas pay attention to both present state and potential growth of the sponsoring organizations. For instance, the company must prove that they not only have a legitimate business but the business also has or will have a substantial impact on the U.S. job market and the economy at large.
As an L-1 visa sponsoring employer, your business plan is one of the things the USCIS will scrutinize to make a decision on the petition. This is why it is recommended to have a flawless L-1 business plan. That said, having a plan won’t just be enough, the details in the plan must correspond with the present reality of the business. For instance, if there are exaggerated business growth projections that do not reflect the standards in your industry, this may stand as a red flag.
L-1 Approval Rate
In the past 5+ years, L1 denial rates have been rather high. The 2021 denial rate for L1B petitions to transfer overseas employees with specialized knowledge to the U.S. was 26.2%. Compared to the H-1B petition denial rates, the L1 approval rate is lower. By comparison, in fiscal year 2015 (Obama administration), the L1B denial rate was 24.9% and then 24.2% in 2016. When Trump entered into office, the denial rate went up to 26.9% and then 28% in 2017, followed by 34.4% in 2019. When Biden entered office, the denial rate went down slightly.
“USCIS officers review each L-1B petition on a case-by-case basis to determine if they meet all standards required under applicable laws, regulations, and policies. […] The agency will continue to solicit feedback from stakeholders to identify procedural efficiencies and promote policies that break down barriers in the lawful immigration system.”
L-1 Visa Background
The L-1 is a nonimmigrant visa that allows multinational companies to send managers, executives, and employees with specialized knowledge to an office or affiliate in the U.S. It comes with a host of benefits such as:
- Dual intent
- No annual limit
- No educational requirements
On top of that, an employer can file an L-1 blanket petition for multiple employees at once rather than file each one individually. It also allows these workers to travel to the U.S. to establish a new office or branch in the country.
In fact, the only major requirement is that the beneficiary needs to have worked for the company for at least one full year in the three years that precede the petition filing. However, despite all of these benefits, the L-1 is not the easiest work visa to obtain. This is because the USCIS is becoming stricter with who qualifies as a manager, executive, or employee with specialized knowledge.
What is considered specialized knowledge?
Specialized knowledge is considered knowledge the individual has about the “organization’s product, service, research, equipment, techniques, management, or other interests and its application in international markets, or an advanced level of knowledge or expertise in the organization’s processes and procedures (See 8 CFR 214.2(l)(1)(ii)(D)).”
L-1 Visa Categories
The L-1 visa is categorized into two groups, which are L-1A Intracompany Transferee Executive Visa or Manager and L-1B Intracompany Transferee Specialized Knowledge Visa. According to the United States Citizenship and Immigration Services (USCIS), to qualify for an L-1 visa, there must be a qualifying relationship between the U.S. organization and the foreign company where the employee works. Here is a quick L1A vs L1B breakdown:
L-1A Intracompany Transferee Executive or Manager
The L-1A category is for managers and executives. In order to qualify as a manager, you must prove that you supervise other employees within a particular department or major function of the company. Executives must demonstrate that they are capable of making decisions on a large scale without the approval or significant supervision of superiors.
L-1B Intracompany Transferee Specialized Knowledge
The L-1B category is meant for employees that possess specialized knowledge that makes them indispensable to the continuing function of the company’s products or systems.
The current regulations do not quantify these requirements, so the ultimate decision is up to the adjudicating officers at USCIS.
L-1 Extension Denial
If you are already on the L-1 visa status and have almost completed your initial three-year stint in the U.S., then you may want to file for an L-1 extension. However, this can also be easily denied by the USCIS.
To have your extension approved, you will need to prove two things:
- You have been employed throughout your stay
- Your job duties and salary have not changed in a way that disqualifies you for L-1 status
If you are unable to demonstrate these things, then there is a high likelihood that you will have your L-1 extension denied. An immigration attorney can help you organize your facts so that you can present the best possible case to the USCIS and limit the possibility of being denied.
What to Do After Denial
If you have your L-1 visa denied, there are a few things that you can do to work in the U.S. under that same company. Always be sure to work very closely with a qualified immigration attorney after an L-1 denial in order to determine your options and to ensure that you are making the correct legal decisions.
If your sponsoring company already has an established and active branch or affiliate in the U.S., then you may be eligible to apply for an H-1B visa instead. While this visa option does require a bachelor’s degree and is very competitive, the requirements for an H-1B specialty position are not as stringent as the requirements for an L-1 employee with specialized knowledge.
On the other hand, if you are not qualified for any other work visa, then you have the option to appeal your L-1 visa denial. To do this, you can either file an appeal with the Administrative Appeals Office (AAO) or you can appeal to a U.S. District Court directly.
Appealing to the AAO often takes at least six months and generally results in an affirmation of the previous denial by the USCIS. Because of this, choosing to appeal to the AAO is usually not recommended. However, consult with your immigration lawyer to be sure.
While, in many cases, you must first appeal to the AAO before moving on to a District Court, there are some situations that allow you to go directly to a judicial review. In this case, you would need to prove that the L-1 denial by the USCIS was a decision that was arbitrary, capricious, or irrational.
While this may seem like a golden opportunity to overturn the USCIS’ L-1 visa denial and gain approval, it is important to have your facts in order by having them compiled by an attorney that knows immigration law inside and out.
L-1 Visa Benefits
The L-1 visa is one of the most sought-after nonimmigrant visas mainly because of its numerous benefits, which include:
The L-1 is a dual-intent visa. This means that, as a beneficiary, you can apply for a green card without violating your status. Not all nonimmigrant visas have this privilege. Adjusting your L-1 visa to permanent resident status comes with several benefits, including the right to sponsor your relatives for green cards.
No Numerical Limit
For many nonimmigrant visas, there is an annual quota of the number of visas that can be issued in a year. For example, the standard H-1B category has a limit of 85,000 per year. After the specified number of visas has been issued, other applicants will have to wait until the following year to reapply. Fortunately, this is not the case with the L-1 visa.
The Eligibility Criteria Are Relatively Lower
Compared to another highly beneficial visa, the O-1 Extraordinary Ability Visa, the L-1 visa has fewer requirements. While the O-1 category has a longer list and more stringent eligibility requirements, the L-1 only requires you to demonstrate specialized knowledge or be a manager or executive of a multinational company.
What is the L-1 Visa Reform Act of 2004?
The L1 Reform Act of 2004 is for petitions filed after June 6, 2005 and is for those will be working at the worksite of an employee or its affiliate, subsidiary or parent. The petitioning employer needs to show that:
- The employee will not be principally controlled or supervised by such an unaffiliated employer; and
- The work being provided by the employee is not considered to be labor for hire by such an unaffiliated employer.
The Next Steps…
We know that receiving an L-1 visa denial can be an uncertain situation that puts months of hard work at risk. We never recommend going through an appeals process alone. Retaining an experienced immigration attorney can not only take much of the stress out of the entire process, but it can also maximize your chances of success.
VisaNation Law Group’s expert L-1 attorneys have a long track record of helping people obtain L-1 visas and working with them through an L-1 denial. VisaNation Law Group will guide you through the process step-by-step to ensure that you are making the best decisions for your case. Schedule your consultation today.