As a pipeline that supplies U.S.-based businesses with much needed talent and expertise, the L-1 visa has a critical role to play in the functioning of the American economy. Every year tens of thousands of highly-skilled workers, managers and executives enter the U.S. under the auspices of the L-1, which allows foreign businesses operating here—or national companies with an overseas presence—to fill open posts by reassigning qualified individuals already in their employ.
The L visa comes in two forms: the L-1B, for employees with “specialized knowledge” (i.e., an advanced understanding of a company’s products, services, processes or procedures that would make them difficult to replace), and the L-1A, for executives and managers who’ve already proven their mettle in a company’s overseas operations. The L-1A is also for foreign business owners who want to spend time in the United States overseeing the opening of new branches or offices. Both the L-1B (the more commonly awarded) and the L-1A are initially approved for one year and can be renewed (with USCIS approval) for longer periods after that. These are temporary visas, however, and do not lead directly to permanent residency.
The L-1 visa application process is supposed to be relatively straightforward. The standards of the United States Citizenship and Immigration Service (USCIS) are strict and its requirements are many, but as long as great care is taken and all information asked for is provided, L-1 applicants should be in good shape—theoretically.
In recent years, however, L-1 approval rates for new applications and renewals have been inexplicably dropping at an accelerating rate. No announcement of tightening standards has been made, but by all indications it appears standards have indeed been tightened, and no one is quite sure what precipitated the modification.
According to the National Foundation for American Policy, rejections of L-1B visa applications and/or applications for renewal jumped from just 6 percent in 2006 to 35 percent in 2014, and the testimony of experts in the field suggests that percentage is continuing to rise. Requests for Evidence (RFEs), which are sent by USCIS adjudicators to L-1 hopefuls whose initial applications were judged inadequate, were received by just 2 percent of filers in 2004. But ten years later that number had soared to 45 percent, and the RFEs appear to be getting more demanding as time progresses.
L-1A Applicants in the Crosshairs
Up until recently, the L-1A visa process has been running more smoothly. But that situation appears to be changing. While authoritative statistics are not yet available, anecdotal evidence suggests those seeking permission to transfer into the U.S. to assume managerial or executive positions, or to come over to open new offices or branches of the parent company, are now being turned down far more frequently than in the past.
Simone Bertollini, an experienced immigration attorney from New Jersey who has handled hundreds of cases, has noticed the USCIS’s change in policy and is baffled by it. Recently he’s seen two prestigious clients—Italian owners of a construction company and a marble company respectively—get turned down for L-1A “new office” visas, despite jumping through hoops to provide tons of information about their business plans, financial accounts, personal and professional histories, educational backgrounds—anything and everything that might be relevant, in triplicate where necessary and carefully vetted to eliminate evidence gaps, grammatical errors and confusing language.
But in each case, applications that should have been slam dunks for approval—and would have been 10 years ago—were rebuffed for no discernible reason. The owner of the Italian construction company was chastised by the USCIS for not providing specific job descriptions listed on the proposed U.S. corporate chart, but “the USCIS didn’t even ask for that,” according to the incredulous Bertollini, who says his client provided 165 pages of verifying data in support of his response to the USCIS’s RFE. His other spurned client, the owner of the Italian marble company, had seemingly proved his sincerity by spending more than a quarter-of-a-million dollars of his own money on equipment, inventory and purchases in the United States in the months before filing his application. But in the eyes of the USCIS, that was not enough to prove his honorable intentions—no dice on the visa, they said, thwarting his attempts to deepen his investment in the U.S. economy.
Published L-1A standards say new office candidates must only establish it is “more likely than not” they will open a new branch within one year of their arrival on U.S. soil. But based on the USCIS’s recent decisions, Bertollini believes they’ve unilaterally elevated this simple standard to something far higher than “beyond a reasonable doubt,” despite the absence of any published mandate signaling their intention to do so.
Why Here, Why Now? Some Possible Answers
No one is sure why this drastic change in immigration policy has taken place. The USCIS isn’t talking and few media outlets seem willing to ask pointed questions.
But experts on immigration law and commentators on the politics of immigration are speaking up, offering educated guesses about the hidden agendas and palace intrigue that might be pushing the USCIS toward a more reactionary stance.
Suspicions of fraud and abuse: Critics of the L-1 system see it as a disguised form of outsourcing. They claim companies seeking permission to transfer supposedly “essential” labor from abroad are really just importing cheaper workers to replace—or reduce their need for—more highly-paid American workers. These critics believe the “specialized knowledge” stipulation of the L-1B visa has been especially abused and that little evidence exists to suggest employees trained overseas are the only ones capable of filling new posts in the United States.
Some theorize this drumbeat of fraud accusations—and the political pressures it is helping to create—may be influencing the behavior of USCIS, leading it to crack down on perceived abuses. If so, this is an unfortunate turn of events, since a 2006 investigation carried out by the Department of Homeland Security’s Office of the Inspector General (OIG) found scant evidence to suggest high-tech, highly-skilled American workers are being frequently displaced by L-1 imports.
Concern over job loss and economic decline following recession: In 2008, unemployment rates in the U.S. soared as the financial system imploded. The country—and the world—teetered on the brink of disaster, and no one was sure if or when the U.S. economy would pull itself out of its death spiral.
Coincidentally (or maybe not) it was just about that time the USCIS suddenly began to demonstrate a newfound truculence in its dealings with L-1 visa applicants, leading some to speculate that economic recession may have triggered protectionist impulses inside the immigration establishment. The old canard about immigrants taking American jobs was being bandied about quite frequently in those days, during political campaigns as well as in the media, and this may have had a subliminal effect on the deliberations of USCIS adjudicators.
National security concerns: Are terrorists applying for L-1 visas?
The idea might seem farfetched. But in its final conclusions—and in contradiction to the evidence they themselves collected—the previously referenced DHS OIG report claimed the L-1A visa system was vulnerable to fraud and misrepresentation. This assertion may indicate the presence of a paranoid mindset inside government—particularly among those responsible for monitoring national security—that is hurting the chances of temporary work-related visa applicants. In his 2012 testimony before two House committees, USCIS director Alejandro Mayorkas told legislators his organization had launched 16 separate initiatives designed to root out fraud and deception in the immigration process, and he confirmed that national security concerns were one rationale for the USCIS’s growing interest in uncovering impropriety. And beyond these 16, who’s to say how many other top secret directives the USCIS may be following, at the behest of the DHS or other actors from within the American security state?
The mind-boggling complexity of the L-1 requirements: The language the USCIS uses to explain its prerequisites for L-1 visa approval is not for the faint of heart. That is why applicants for these visas usually contract law firms or independent attorneys with a background in immigration law to shepherd them through the application process.
But it is likely—and to some extent the USCIS has even admitted as much—that the complexity of the L-1 stipulations and the sheer density of the verbiage used to explain them may be confusing USCIS adjudicators just as much as it is confusing visa hopefuls. That could explain the soaring number of RFE requests, as adjudicators who aren’t sure what they’re supposed to be looking for are trying to collect as much information as possible before making a final decision. And if course if gun-shy USCIS administrators fearing political consequences are bombarding those adjudicators with inter-office memos, addendums and clarifications of standards, that might be muddying the picture even further. There is such a thing as too much information, especially if those receiving the information were a bit confused right from the get-go.
The replacement of a “helping” culture with a “policing” culture: Businesses that sponsor L-1 visa applicants see great promise and possibility in their existing or proposed U.S. investments, and they wisely seek the temporary assistance of employees, managers and executives whom they know they can trust to get the job done. The whole U.S. economy benefits from their collective efforts, and one would expect the USCIS to take a constructive, service-oriented approach to the L-1 visa approval process in order to ensure the fires of economic growth are kept stoked.
Looking out for obvious signs of fraud and misrepresentation is necessary, to be sure. But the USCIS seems to have lost sight of its original mission, at least with respect to the L-1 system. Rather than facilitating a process that adds skill, diversity and entrepreneurial energy to the U.S. economy, USCIS adjudicators now seem to operate as if they were some sort of auxiliary police force, charged with exposing chicanery and skullduggery on the part of cynical manipulators looking to beat the system. Unfortunately their exuberant determination to smoke out scammers and catch the bad guys may be manifesting too often as petty tyranny, as so often happens in policing when real miscreants are nowhere to be found but unacknowledged ‘gotcha!’ quotas still need to be filled (the behavior of TSA agents at the airport provides an excellent example of this dynamic in action).
The Winds of Change or an Ill Wind Blowing?
As would be imagined, immigration attorneys and other advisors have been scrambling to adjust to the new L-1 visa reality. Pouring over RFEs and rejection notices with a fine-tooth comb, they have invested enormous time and intellectual energy trying to figure out just what the USCIS is looking for and what they have to do to make sure their clients are dotting all the i’s and crossing all the t’s.
But so far this approach doesn’t appear to be working. Faster than the experts can adjust, the USCIS keeps moving the goal posts, providing new and ever-more-imaginative excuses to explain why they are rejecting L-1 visa applications that have been meticulously crafted to avoid previously identified pitfalls.
“There has been a steep increase in the denials of L-1 visa applications in the last year and a half,” Simone Bertollini states, confirming the inability of immigration lawyers to figure out the elusive and constantly evolving logic of USCIS adjudicators. Bertollini identifies the behavior of the USCIS Vermont Center as being especially overzealous, although reports of seemingly inexplicable L-1 rejections have been pouring in from everywhere.
To the USCIS’s credit, it appears that administrators do recognize they have a problem, at least with respect to the high refusal rate for L-1B visas. In March they released a policy memorandum that purports to both alter and clarify what does or does not qualify as “specialized knowledge,” while also explaining how its burden of proof can be met.
Unfortunately many who’ve read over the memorandum, which does not officially go into effect until August 31, say it doesn’t do much more than restate the old definitions in different language. And of course the memo doesn’t address the situation with L-1A visas, where the reasons for the growing number of rejections are entirely mysterious and call out for explanation. Whether the memo and the supposed policy changes it announces are legitimate or just a public relations ploy remains to be seen, and since we know so little about the real reasons why the USCIS has become so restrictive with L-1s, there’s no telling if the new guidelines are even addressing the primary causative factors responsible for the change.
L-1 Stagnation Equals Economic Stagnation
It is clear the USCIS’s recent intransigence on L-1 visas is having a deleterious effect on the U.S. economy as a whole. Companies with a genuine interest in expanding the workforce and bringing new investment funds to these shores are being obstructed by policies that cause unnecessary time delays, increase immigration compliance costs and derail promising start-ups before they can get off the ground. The number of L-1 visa applications received by the USCIS dropped by an alarming 23 percent between 2012 and 2014, so the reluctance to approve has been noticed and is having an ominous effect on patterns of foreign investment.
Ironically, reform that made it easier to secure L-1A and L-1B visas would likely make it easier for USCIS adjudicators to sniff out real fraudsters as well, since they’d no longer be required to fret over every detail of every application or squander inordinate amounts of time compiling massive RFEs and evaluating the responses. Real reform to this broken system can’t come soon enough, and if the recently announced changes aren’t sufficient to get the process back on track, policymakers will need to revisit the situation quickly before America’s economic security is damaged even further.