New data released by U.S. Citizenship and Immigration Services (USCIS) show that the number of L-1B intracompany transfer petitions approved in FY 2013 fell sharply from FY 2012. For employers considering L-1 petitions, particularly as an alternative to H-1B petitions, the data are a reminder that L-1 petitions are not a slam dunk.

The new information shows that USCIS approved 11,944 L-1B petitions in FY 2013, down from 14,180 in FY 2012. Approvals in FY 2013 represented 67 percent of receipts, down from 76 percent in FY 2012 (although not all receipts are decided in the same fiscal year).

In light of H-1B filing season, many H-1B petitioners that do not make it under those numerical caps turn to L-1 visas instead. But L-1 petitions have been an uphill battle for the past several years.

There has been growing debate over the L-1B category, which allows professionals with specialized knowledge from a foreign office to transfer to a U.S.-affiliated office or to open a U.S. branch. Immigration attorneys have noticed a steady increase in the documentary burden to prove that an L-1B applicant possesses “specialized knowledge.”

In particular, Indian nationals seemed to face a higher burden than applicants from other countries, according to Stuart Anderson, executive director of the National Foundation for American Policy in Arlington, Va. The nonprofit policy organization published a report in February 2012 revealing high denial rates for L-1B petitions between 2008 and 2011. Anderson said the new data, which contains only total numbers rather than country-specific breakdowns, may mask those disparities.

Last fall, the Office of the Inspector General released a report pointing out flaws in the L-1B process, including inconsistent interpretation of the “specialized knowledge” standard. The report recommended guidance from USCIS to define “specialized knowledge.”

Another concern, Anderson said, is the high number of requests for evidence (RFEs), where the government seeks more information from the petitioner. An RFE can take months to satisfy, delaying a decision.

“There were a lot of requests for evidence, which can be the same as a denial if it pushes people back to a time that is no longer useful to the company,” Anderson said. “If you need a plumber now, and he can’t come until December, it doesn’t do you any good.” In many cases, foreign nationals were not able to get L-1B approval for a particular start date, such as a product launch date, until it was too late.

USCIS DATA – L-1B Petitions
  2012 2013
Submissions 18,700 17,723
Approvals 14,180 11,944
Approval of Total Receipts 76% 67%
Denials 6,068 6,242
RFEs 8,688 8,363

USCIS released the data on March 5 in response to a Freedom of Information Act request by the American Immigration Lawyers Association.

BAL Analysis: Companies are increasingly turning to L-1 intracompany transfers as alternatives to the numerically-capped and oversubscribed H-1B specialty occupation petitions. However, this category is under close scrutiny and the new numbers indicate that L-1B petitions continue to be problematic and unpredictable.

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