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L-1B Denial and RFE Report Impacts Entrepreneurs

A March 2014 report by the National Foundation for American Policy shows that USCIS has issued more denials and Requests for Evidence (RFE) in recent years for L-1B multinational specialized knowledge employees. The statistics contradict the outreach efforts former Director Mayorkas made to the business and entrepreneur community through the Entrepreneurs in Residence program, and an entrepreneur-focused new web portal called Entrepreneur Pathways. Granted, it is up to the U.S. Congress to bring business immigration categories and requirements into the modern world, and they have failed to do so for decades. But, Director Mayorkas’ push to make the existing categories and regulations more user friendly hasn’t filtered down to the adjudicators on the ground that actually decide these cases.

A good portion of the denials involve Indian L-1B specialized knowledge cases, due largely to the government’s adversity to IT consulting firms placing technical workers at third party sites. However, the report shows a dramatic increase in denials overall from 7% in 2007 to 34% in 2013. Meanwhile, for 2013, there were 17,723 L-1B petitions received, of which 8,363 (47%) received RFEs. 6,242 of the petitions were denied while 11, 944 (67%) were approved. Therefore, while the denials and RFEs have gone up, still a majority of cases are granted, though not the majority there once was.

Unfortunately, this trend reflects adjudicator hypersensitivity about fraud, not just with small companies, but with big companies, too, given the number of RFEs. It adds considerably to the cost of pursuing an L-1B case because of the extra time and effort required to reply to RFEs, most of which are boiler plate, “everything but the kitchen sink” lists of questions. Experience with RFEs often reflects inconsistency among adjudicators. Sometimes it appears the adjudicator hasn’t read the application (e.g., the questions ask for things already submitted); or that parts of the application must have been lost in the mail room (e.g., the questions ask for things already submitted that appear the adjudicator never saw or read); or the adjudicator misunderstands the request (e.g., the questions ask for explanations about manager or executive status, not specialized knowledge); or the adjudicator misapplies the law (e.g., asks questions pertaining to another category not requested.) Occasionally, the questions seem to reflect that the adjudicator read the application and doesn’t feel comfortable granting a case yet unless some more “i”s are dotted and “t’s” are crossed (e.g., more of the same categories of evidence are submitted in addition to what was already submitted.)

Most RFEs state “the information you submitted is insufficient.” The adjudicator fails to state what information is insufficient or how, giving petitioners little opportunity to understand just what the issue is. This was just the type of RFE problems Director Mayorkas tried to fix when the organization created new RFE templates in other visa/green card categories. There, the adjudicators were required to comment directly about the evidence submitted and the specific deficiencies at hand. In fact, headquarters was supposed to have come out with adjudication guidelines for L-1 visas and never did. Why those same principals don’t apply to all types of cases is the big question.

On the flip side, RFEs can be useful, giving petitioners another chance to submit more information not previously provided or available. Just because a petitioner receives an RFE, doesn’t mean the case will be denied. In fact, most are approved, which may mean the adjudicators just want a better record. However, the long and the short of RFEs is that it takes up everyone’s time and money, adjudicators included. Further, the inconsistencies among adjudicators and cases make it unpredictable for employers to know which cases will make it through favorably. The substantial delays involved make it unpredictable for employers to know when or if the employee will be available to work. This is particularly important for employers with time sensitive projects and quick product or service development cycles.

At a time when government should be encouraging the development of job growth, cracking down on L-1B petitioners does not make sense. Obviously, there will be some bad apples – or there will be poorly prepared cases. But, treatment of the bad apples should differ with regard to the treatment of quality companies, regardless of size, and their highly specialized employees. L-1 visas were designed in the first place to foster multinational growth of companies in the USA that in turn foster further direct and indirect job growth and international trade.