L-1B visa denials in India spark a debate about "specialized knowledge"Posted on Thursday, November 17, 2011
For U.S. employers who operate around the world, L-1 visas are an important means of moving executives, managers and other personnel with specialized knowledge into the U.S. for temporary assignments. For some time now, observers have alleged that U.S. Consulates in India are increasingly denying L-1B visa applications for individuals with specialized knowledge. U.S. State Department data recently obtained by the National Foundation for American Policy (NFAP) for 2010 and 2011 confirms that U.S. employers are indeed finding it far more difficult to transfer India-based employees to the U.S. on L-1 visas.
To qualify for an L-1B visa, a beneficiary must have worked abroad for their employer for at least one continuous year during a 3-year period. Obtaining the visa is a two step process. First, the U.S. company files an L-1B petition demonstrating that the individual is qualified for the position and has specialized knowledge of the company's products or services, research, equipment, techniques, management, processes or procedures. This petition is adjudicated in the U.S. by the U.S. Citizenship and Immigration Service (USCIS). Once approved, the file is transferred to the appropriate consulate in the beneficiary's country.
In the second and final step, the employee files an application at the consulate for his or her L-1B visa. The consulate's official role is to verify the applicant's identity and determine whether he or she is admissible. Does the individual have a criminal record, an adverse immigration history, or any other ground for inadmissibility? Is there any fraud or misrepresentation in the applicant's record? Absent a finding of fraud or any other ground for inadmissibility, the reviewing Consular Officer is expected to approve the L-1B visa. In fact, once the USCIS has determined that the alien has specialized knowledge and is otherwise qualified for the U.S. position, it is beyond the scope of the Consular Officer's authority to issue a denial.
In an October press release, the U.S. Mission to India announced that India "remains the leader in issuances of L-1 visas" but provided no further details about L-1 adjudication trends. The same statement provided full details about trends in H-1B applications and approvals, from which approval rates could easily be inferred. This apparent omission prompted NFAP to ask the State Department for further information on the L-1 program in India. In response, figures were released demonstrating a 28% decline in L-1 approvals between FY 2010 and FY 2011. In the rest of the world, L-1 visa approvals increased by a healthy 15% during the same period, reflecting the continued globalization of private sector enterprises.
Allegations of bias at U.S. consulates in India cannot be substantiated without knowing the year-over-year change in L-1B applications as well as the change in approvals. NFAP believes that if L-1 applications had decreased by 28% or more along with approvals, this information would have been made available, countering speculation about an inexplicably large increase in visa denials. In their response, the Bureau of Consular Affairs in India acknowledged that some companies were indeed experiencing high denial rates, and stated that "we have seen an uptick in unqualified applicants in this category due to a much broader use of complex 'specialized knowledge' provisions as the basis of L-1 applications. We work proactively with companies . . . to ensure that we explain the requirements for this visa in complete detail."
Crystal Williams, Executive Director of the American Immigration Lawyers Association (AILA) observed in a recent Forbes magazine article that "there has been no change in the qualifications of applicants at Indian or any other posts. Nor has there been any change in the rules and regulations governing eligibility for L-1 visas". Instead, "there has been an attitudinal change in adjudications. Recent adjudications have ignored the flexible statute enacted by Congress that was meant to accommodate the increasing globalization of the economy, to facilitate the ability of businesses to bring employees with needed skills into the United States and to operate competitively in the United States and across the globe."
Elsewhere, AILA has suggested that the belief that foreign workers are taking jobs from U.S. workers is leading some Consular Officers to "fish" aggressively for evidence that an L-1B applicant has misrepresented his knowledge and qualifications. At a recent conference in Bangalore, employers summarized the current climate for L-1B applicants in India as one of "prove to me why I should not deny" rather than "show me why you are eligible". To date, neither the Department of State nor USCIS has been able to explain why "specialized knowledge" is now so difficult for Indian nationals to establish.