Foreign companies who transfer employees to the U.S. have become discouraged, and immigration lawyers are increasingly frustrated by what they see as the U.S. Citizenship and Immigration Services' unnecessarily high hurdles to renewing L-1B Visas. The problem is primarily structural, not ideological–it has persisted throughout the Obama, Trump, and Biden administrations, growing worse in recent years. According to Forbes magazine, the average denial rate for L1-B petitions over the last decade was 28.2 percent, compared with under 5 percent for H-1B petitions, which are used by U.S. companies hiring foreign nationals to work in the U.S.
The Purpose of An L-1B Visa
The L-1B Visa is used when a foreign company decides to move one or more professionals with specialized knowledge to a US-based branch or subsidiary. It can also be used when a foreign company wishes to open a branch in the U.S. The visa is valid for three years, after which it may be renewed for an additional two years. That's often when the problems start.
Typically, large foreign companies wishing to send professionals to the U.S. file what is known as a “blanket petition” with the local U.S. Department of State consulate. (Canadian firms file with the U.S. Customs and Border Protection agency.) Once approved, the employer completes a Form I-129S Nonimmigrant Petition and transmits it to the employee, along with a copy of the blanket petition approval. The process is relatively straightforward and efficient.
USCIS Discounts Department of State Assessments
The hangup occurs when employees try to renew their L-1B Visas. USCIS procedure has been to treat petitions for renewal like first-time applications, giving no deference to prior Department of State decisions. The USCIS Policy Manual states, “USCIS officers consider, but do not defer to, previous eligibility determinations on petitions or applications made by CBP [Customs and Border Protection] or DOS [Department of State].”
As a result, the USCIS requires the overseas home office to transmit documentation attesting to the employee's skills and experience. Unfortunately, by the time an employee has been away from the home office for three years, subsequent management changes and loss of relevant documents can make it difficult to satisfy the requirement.
Pre-Covid, offshore companies avoided the problem by moving the employee back to the home office long enough to renew the L-1B Visa through the consulate. But after Covid restrictions shut down foreign travel, companies had no choice but to go through the burdensome USCIS process, making an already slow process even slower. The time and expense involved in meeting USCIS demands have prompted some overseas companies to shrink their U.S. presence, diminishing much-needed foreign investment into the U.S. economy.
Hope for Improvement
In April 2021, USCIS announced that it would revise its policy manual so that those handling renewals would give deference to prior determinations when considering extension requests. It remains to be seen if this will speed up the process.
To schedule a consultation with experienced Palm Beach immigration attorney Jacqueline Delgado, call Delgado Law Group at (561) 342-1429 or schedule a consultation online.