L1 Visa Denial Reasons
With all of its advantages, it’s no wonder why the L1 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 L1 visa denial, then here are some of the reason you may not get your visa approved.
L1 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, and no educational requirements. On top of that, an employer can file an L1 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 more strict with who qualifies as a manager, executive, or employee with specialized knowledge.
Here is a quick breakdown of each category:
- L-1A: This 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: The second L1 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 the USCIS.
L1 Visa Denial Reasons
Here are some of the common reasons that our firm has encountered concerning L1 denial:
Failure to Meet Employee Requirements
For managers applying for the L-1A, the USCIS will expect you to have a certain number of employees under your supervision. This is due to the fact that the USCIS has stated that its goal for the L-1 visa to become a method of creating jobs for U.S. workers.
However, the number of required supervised employees is not specified in the regulations and usually scales with the size of the U.S. branch or affiliate. Because the denial rate is rising on account of this rule, it is recommended that you manage at least 5-8 subordinate employees.
Salary Does Not Meet Standards for the Industry
A major red flag for the USCIS is if the proposed wages for the visa applicant are either significantly lower or higher than the industry standards. This is also dependent on the location of the position. For example, an IT manager in Detroit may average a much higher salary than in a smaller city or town. As an employer, you must be sure to check the prevailing wages for each position that will be filled by L-1 applicants.
Your Proposed Business Growth is not Feasible
There have been instances where employers will embellish their business plan to reflect unrealistic success in order to impress the USCIS. This is not a good strategy as the USCIS is rarely fooled by this tactic. Industry standards and local case studies can easily show how your branch is expected to perform. Exaggerations will only rouse the suspicions of the USCIS and increase the likelihood of an L1 denial.
Duties and Job Titles do not Match
The USCIS mainly issues an L1 denial when they have reason to believe that the employee transfer may be fraudulent. One red flag for this is if your duties do not match your position title. This means that simply having the word “manager” or “executive” in your title does not automatically qualify you for an L1 visa. You must be actively supervising and controlling the work of other employees or making large-scale decisions within the company.
For example, Daniel is applying to be an account executive for an online marketing company’s U.S. branch. His job duties include working with clients and ensuring that they receive and are satisfied with their products. He would most likely have his L1 denied due to the fact that, even though his title includes “executive”, his job duties do not demonstrate his ability to influence the company’s decisions.
Documents Filed Improperly
While this reason may seem self-explanatory, you may be surprised at how easy it is to make a simple mistake on your petition that could cost you the visa. Whether it’s having inaccurate or inconsistent information, having insufficient job descriptions, or filing with the wrong service center or in an unacceptable delivery method, there is a plethora of ways to incur an L1 denial. Working with an immigration attorney can help mitigate these issues.
Work is not Specialized
Perhaps the highest denial rate is carried by L-1B visa applications. This is because, many times, the USCIS does not deem the proposed duties as “specialized” work. It is often difficult to demonstrate that an employee is invaluable to the operation of the company and that a replacement U.S. worker could not be found and trained to do the same tasks.
This increase in L1 denials may be due to the fact that the USCIS is endeavoring to protect the jobs of U.S. workers and to grow the domestic job market. The L1 visa is designed to be a way for international businesses to create positions for U.S. workers rather than be a funnel for the unskilled employees of foreign companies.
L1 Extension Denial
If you are already on L1 visa status and have almost completed your initial three-year stint in the U.S., then you may want to file for an L1 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 L1 status.
If you are unable to demonstrate these things, then there is a high likelihood that you will have your L1 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 L1 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 L1 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 L1 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 L1 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 L1 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’s L1 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.
How Our Immigration Attorneys Can Help
We know that receiving an L1 visa denial can be an uncertain situation that puts months of hard work at risk. That’s why 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, it can also maximize your chances of success.
Our expert L1 attorneys have a long track record of helping people obtain L1 visas and working with them through an L1 denial. We will guide you through the process step by step to ensure that you are making the best decisions for your case. To contact one of our L1 attorneys, fill out this simple form to schedule your consultation today.