Data Reveals USCIS Increasing Number of Requests for Evidence on L-1B Cases, California Service Center Continues to Lead Vermont Service Center in RFEs and Case Denials
Responding to a Freedom of Information request submitted by The American Immigration Lawyers Association Liaison, USCIS revealed interesting data on L-1B nonimmigrant petitions receipted, approved, denied, and those subjected to a Request for Evidence (“RFE”) for FY2012 and FY2013. The data, when compared with USCIS statistics and a National Foundation for American Policy report, both released in 2012, reveals that the L-1B denial rate increased from 27% in FY2011 to 30% in FY2012 and 34% in FY2013.
TITLE IV OF THE SENATE’S S.744 IMMIGRATION REFORM BILL – RELATING TO CHANGES IN H-1B, L-1, E-2 NONIMMIGRANT VISAS
TITLE IV–REFORMS TO NONIMMIGRANT VISA PROGRAMS
Subtitle A–Employment-based Nonimmigrant Visas
SEC. 4101. MARKET-BASED H-1B VISA LIMITS.
(a) In General- Section 214(g) (8 U.S.C. 1184(g)) is amended–
(1) in paragraph (1)–
(A) in the matter preceding subparagraph (A), by striking `(beginning with fiscal year 1992)’; and
(B) by amending subparagraph (A) to read as follows:
`(A) under section 101(a)(15)(H)(i)(b) may not exceed the sum of–
`(i) the base allocation calculated under paragraph (9)(A); and
`(ii) the allocation adjustment calculated under paragraph (9)(B); and’;
(2) by redesignating paragraph (10) as subparagraph (D) of paragraph (9);
(3) by redesignating paragraph (9) as paragraph (10); and
(4) by inserting after paragraph (8) the following:
`(9)(A) Except as provided in subparagraph (C), the base allocation of nonimmigrant visas under section 101(a)(15)(H)(i)(b) for each fiscal year shall be equal to–
`(i) the sum of–
`(I) the base allocation for the most recently completed fiscal year; and
`(II) the allocation adjustment under subparagraph (B) for the most recently completed fiscal year;
`(ii) if the number calculated under clause (i) is less than 115,000, 115,000; or
`(iii) if the number calculated under clause (i) is more than 180,000, 180,000.
New Delhi | November 19, 2012
In March of 2012, the United States Mission to India unveiled the Interview Waiver Program (IWP) which allows qualified individuals to apply for additional classes of visas without being interviewed in person by a U.S. consular officer. Following the success of the IWP, as part of continuing efforts to streamline the visa process, and to meet increased visa demand in India, the U.S. Mission is pleased to announce an expansion of the IWP. We expect this expansion to benefit thousands of visa applicants in India.
A National Foundation for American Policy report finds Indian applicants for L-1 and H-1Bs are most likely to be denied or issued an RFE query; L-1 cases for Indian Professionals have been denied up to five times as often as someone from a different count
A National Foundation for American Policy report which analyzed official data from USCIS revealed evidence that Adjudicating Officers have dramatically increased the issuance of denials and requests for evidence in L-1 (intra-company transferees) and H-1B cases over the last four years, in spite of the fact that there were no changes in law or regulations during the same period. USCIS Officers have, over the last four years, arbitrarily & en masse, increased the difficulty of obtaining H-1B or L-1 status, most particularly for Indian applicants.
Again, this is so despite no new laws or regulations authorizing a change in adjudication protocols. It may be therefore objectively stated that this data is prima facia evidence that Indian IT professionals and their employers have been, over a sustained period, selected for profiling and targeting profiled and targeted as the primary victims of this and other related USCIS “policy changes” since 2008, along with a widely noted increase in visa denials/221(g) queries for H-1 & L-1 non-immigrants at U.S. Consulates [on a related note; see the new "H-1B Beneficiary attestation" evidently now in use at the U.S. Consulate, Hyderabad, ostensibly to be used in justifying mass visa denials for H-1B IT Consultants with end-client job sites].
By way of background, the primary basis for U.S. Immigration law today is the Immigration and Nationality Act of 1965 (“INA”). The INA is tremendously significant because it reversed America’s then (longstanding) racist Immigration policies, including the Page Act of 1875, the 1882 Chinese Exclusion Act and the “National Origins Formula” which had effectively limited immigration from Mediterranean Europe, Latin America and Asia to token levels so as not to change America’s “national character”. It is then truly ironic that adjudicators at the USCIS and U.S. Consulates appear to have been granted unchecked autonomy in systematically countermanding both the INA and its underlying legislative intent by effectively re-proportioning visas or “spots” to countries other than India.
Indians utilize a large number of available H-1B and L-1 numbers, however, they cannot be legally denied on that basis. On October 3, 1965, on the occasion of the signing of the INA, at the foot of the Statue of Liberty, President Lyndon B. Johnson declared that it was a “cruel and enduring wrong” that “…Men of needed skill and talent were denied entrance because they came from southern or eastern Europe or from one of the developing continents. [The old quota based Immigration] system violated the basic principle of American democracy–the principle that values and rewards each man on the basis of his merit as a man…”
Contrast these words with the following excerpts from the NFAP report:
“Companies believe that denials either at U.S. Citizenship and Immigration Services or at consulates, particularly involving Indian nationals, share the common attribute of new (unwritten) arbitrary standards that go beyond the statute and regulations.
Country specific data on new (initial) L-1B petitions indicate U.S. Citizenship and Immigration Services is more likely to deny a petition from an Indian-born professional than nationals of other countries. The denial rate for Indian-born applicants for new L-1B petitions rose from 2.8 percent in Fiscal Year 2008 to 22.5 percent in FY 2009, a substantial increase that resulted in many employers being unable to transfer their employees into the United States to work on research projects or serve customers. In comparison, the denial rate for new L-1B petitions for Canadians rose from 2.0 percent in FY 2008 to only 2.9 percent in FY 2009. Illustrating the abrupt change, U.S. Citizenship and Immigration Services denied more L-1B petitions for new petitions for Indians in FY 2009 (1,640) than in the previous 9 fiscal years combined (1,341 denials between FY 2000 and FY 2008).
Concern that L-1B petitions for Indians have been singled out might be alleviated if the data showed other countries have experienced similar increases in the rates of denial for L-1B petitions with U.S. Citizenship and Immigration Services. However, the data show that while other foreign nationals experienced an increase in denial rates for new L-1B petitions starting in FY 2009, those denial rate increases were far lower than for Indian nationals. L-1 visa issuance declined at U.S posts in Indian in FY 2011 but rose overall for the rest of the world.”
Read the NFAP findings (.pdf)
Transcript: Press Conference on Initiatives to Promote Startup Enterprised and Spur Job Creation, Aug. 2, 2011
On May 12, 2011, the Office of Public Engagement, the Service Center Operations Directorate, and the Office of Policy and Strategy hosted a stakeholder engagement to discuss issues related to the L-1B nonimmigrant classification. More specifically, USCIS was seeking feedback on the interpretation of the term “specialized knowledge” within the regulatory framework and what standards and evidentiary requirements should be followed in determining eligibility for this classification.
Interpreting Specialized Knowledge
An overwhelming majority of stakeholders asserted that the existing regulatory definition of “specialized knowledge” and USCIS policy memoranda which relate to this issue are fine as written, and there is no need to issue any new policy memorandum. Some stakeholders provided feedback indicating that the definition of “specialized knowledge” should be interpreted more broadly than is currently being practiced at the Service Centers. Stakeholders noted that USCIS is interpreting the definition too narrowly as evidenced by the Requests for Evidence (RFE) and denials which are being received by many petitioners for this category. One stakeholder stated that it appears that USCIS has made a change in its interpretation in recent years without any change in the law.
USCIS also sought feedback from stakeholders on whether the current interpretation being used by Service Centers meets the needs of employers. Some stakeholders stated that the current interpretation did not meet the needs of employers because it was being too strictly and narrowly interpreted. They suggested that it would better serve employers if there was an increased flexibility and a broader interpretation of the term specialized knowledge.
Requests for Evidence
One stakeholder commented that petitioners were unsure of what documentation to submit with L-1B petitions at this time because it appeared that USCIS officers were making determinations as to required evidence on a case by case basis rather than having a general requirements list for all cases. They requested that USCIS provide stakeholders with a list of recommended initial evidence as well as additional evidence that should be included with a petition for an L-1B nonimmigrant so as to help petitioners avoid receiving so many Requests for Evidence.
Some stakeholders indicated that petitioners are overwhelmed by the information being requested in RFEs and that some RFEs requested evidence associated with O-1 requirements. They commented that these RFEs are too burdensome and costly and may lead petitioners to withdraw their petitions. Stakeholders also commented that this may lead to highly qualified individuals deciding to go to other countries rather than sharing their expertise to strengthen the U.S. economy.
Several stakeholders commented that USCIS should provide additional training on the proper adjudications standards for USCIS officers working on L-1B nonimmigrant petitions in order to avoid lengthy and repetitive RFEs in the future. Stakeholders suggested that this training should include input from various industries so as to provide USCIS officers with real life examples of how companies utilize L-1B nonimmigrants. It was further suggested by stakeholders that USCIS officers are not following the “preponderance of the evidence” standard, and that this evidentiary standard should be reinforced through training. It was also suggested that the Service Centers should implement a more rigorous supervisory review on all potential RFEs and denials on L-1B adjudications.
Factors in determining Specialized Knowledge
USCIS also asked stakeholders to provide feedback on what relevant factors should be considered in determining if a beneficiary possesses specialized knowledge. One stakeholder commented that the specialized knowledge held by the beneficiary may be of the petitioner’s already existing product rather than of a product the beneficiary is producing or developing for the petitioner.
Another stakeholdercommented that in some cases, an individual is brought in to lead the implementation of a product and to guide the team rather than to create a new product. In other cases, the knowledge relates to the industry rather than a particular company. It is not unique to the company, but rather enhances a company’s competitiveness. Another stakeholder commented that in certain industries such as the software industry, the information is not unique to the company in that there are other individuals who have knowledge of the software as well. The goal, however, is to bring skilled individuals from the overseas market in order to be more competitive.
Stakeholders also indicated that specialized knowledge is different from proprietary knowledge and should not be confused. Some stakeholders reminded USCIS that the L-1B nonimmigrant classification did not require the individual to be extraordinary, and that specialized knowledge need not be proprietary. It was pointed out that specialized knowledge is a special knowledge of the product or processes of a company. Stakeholders also stated that specialized knowledge need not to be narrowly held by a select few individuals within a company. Furthermore, stakeholders stated that specialized knowledge should not be determined by country of origin or by the petitioner’s business model.
USCIS will provide additional guidance and training to USCIS officers adjudicating L-1B petitions.
[Rules and Regulations]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
Rules and Regulations
This section of the FEDERAL REGISTER contains regulatory documents having general applicability and legal effect, most of which are keyed to and codified in the Code of Federal Regulations, which is published under 50 titles pursuant to 44 U.S.C. 1510.
The Code of Federal Regulations is sold by the Superintendent of Documents. Prices of new books are listed in the first FEDERAL REGISTER issue of each week.
DEPARTMENT OF HOMELAND SECURITY
U.S. Citizenship and Immigration Services
8 CFR Part 245
[CIS No. 2420-07; Docket No. USCIS-2007-0047]
Removal of Receipt Requirement for Certain H and L Adjustment Applicants Returning From a Trip Outside the United States
AGENCY: U.S. Citizenship and Immigration Services, DHS.
ACTION: Final rule.
SUMMARY: This rule removes the requirement that certain H and L nonimmigrants returning to the United States following a trip abroad must present a receipt notice for their adjustment of status applications to avoid having such applications deemed abandoned. The purpose of this narrow change is to remove an unnecessary documentation requirement from the regulations that the Department of Homeland Security has determined causes an undue burden on H and L nonimmigrants.
DATES: Effective Date: This rule is effective November 1, 2007.
FOR FURTHER INFORMATION CONTACT: Carol Vernon, Regulations and Product Management Division, Domestic Operations, U.S. Citizenship and Immigration Services, Department of Homeland Security, 20 Massachusetts Avenue, Room 2034, Washington, DC 20529, telephone (202) 272-8350.
Travel outside the United States for an alien who has filed Form I- 485, “Application to Register Permanent Residence or Adjust Status,” to obtain lawful permanent resident status under section 245 of the Immigration and Nationality Act (INA), 8 U.S.C. 1255, may adversely affect that application unless the alien takes certain steps before the trip. Most applicants must obtain permission from U.S. Citizenship and Immigration Services (USCIS) to travel prior to the trip, a process referred to as “advance parole.” See 8 CFR 212.5 (c) and (f). For these applicants, departing the United States without advance parole while their adjustment of status applications are pending results in automatic abandonment of the applications and constitutes grounds for denial. 8 CFR 245.2(a)(4)(ii)(A) & (B).
However, some applicants do not need to obtain advance parole prior to departing from the United States. 8 CFR 245.2(a)(4)(ii)(C) & (D). These are applicants who are permitted by statute to maintain a nonimmigrant status while they seek to obtain permanent resident status. See INA section 214(h), 8 U.S.C. 1184(h). This rulemaking applies to such applicants with respect to two qualifying nonimmigrant classifications: H-1 and L-1 (including dependents, H-4 and L-2). See INA section 101(a)(15)(H) and (L), 8 U.S.C. 1101(a)(15)(H) and (L) (describing H and L nonimmigrant classifications); 8 CFR 214.2(h) and (l). Both nonimmigrant classifications are employment-based. H-1 nonimmigrants include the H-1B classification for “specialty occupation” workers and the H-1C classification for certain registered nurses. See 8 CFR 214.2(h)(1)(ii)(A) and (B). L-1 nonimmigrants include the L-1A classification for certain intracompany transferees who are managers or executives, and the L-1B classification for “specialized knowledge” workers. See 8 CFR 214.2(l)(ii)(A).
Under current regulations, adjustment of status applicants maintaining H or L nonimmigrant status who depart the United States will not be deemed to have abandoned their applications if they did not obtain advance parole prior to departure. However, upon return to the United States, they must demonstrate to the immigration officer at the port of entry that they:
Remain eligible for H-1/H-4 or L-1/L-2 nonimmigrant status;
Will resume employment with the same employer for which they had previously been authorized to work as an H-1 or L-1 nonimmigrant (not applicable to H-4 or L-2 nonimmigrants);
Are in possession of a valid H-1/H-4 or L-1/L-2 nonimmigrant visa (if a visa is required); and
Are in possession of the original receipt notice for the application for adjustment of status, Form I-797, “Notice of Action” (issued by USCIS).
See 8 CFR 245.2(a)(4)(ii)(C). Preserving the pendency of an adjustment of status application in this manner does not apply to H-1/ H-4 or L-1/L-2 nonimmigrants who are under exclusion, deportation, or removal proceedings. In such cases, the Executive Office for Immigration Review of the Department of Justice has jurisdiction over the adjustment of status application and 8 CFR 245.2(a)(4)(ii)(A) governs the effect of travel abroad on those applications.
Because of its varying workload, USCIS recognizes that it is not always able to ensure immediate issuance and mailing of Form I-797 receipt notices upon receipt of an adjustment of status application. At times, USCIS therefore may experience delays in processing and issuing the receipt. This situation places H-1B/H-4 or L-1/L-2 nonimmigrants who are awaiting a Form I-797 receipt notice, but wish to travel outside the United States while their adjustment of status application is pending, in the difficult position of having to decide whether to cancel a planned trip or risk denial of the adjustment application as a result of the departure. Either option would result in hardship to the alien and his or her dependents that the Department of Homeland Security (DHS) finds is unduly burdensome and unnecessary. This is because it renders otherwise qualifying adjustment applications abandoned notwithstanding the fact that the information provided by presentation of the receipt (evidence of filing of an adjustment application) is already available to DHS. An alien whose adjustment of status application is deemed abandoned for failing to present a Form I- 797 receipt notice upon readmission to the United States resulting in a denial of the application would be forced to incur the time and expense involved in filing a new adjustment application.
Section 214(h) of the INA, 8 U.S.C. 1184(h), establishing the H-1/ H-4 and
L-1/L-2 nonimmigrant’s ability to maintain nonimmigrant status while pursuing permanent resident status, is broad and places no documentary restrictions on such ability. Further, DHS has determined, in light of advances in database technology, that the removal of the Form I-797 receipt requirement will not have any adverse impact on its responsibilities to ensure control over aliens seeking admission to the United States. Such aliens must establish eligibility for admission, in any case, before DHS permits them to reenter the United States. In addition, DHS creates a record of its inspection of the alien, including the alien’s application for admission.
II. Regulatory Changes
This rule amends 8 CFR 245.2(a)(4)(ii)(C) to remove the requirement that an H-1/H-4 or L-1/L-2 nonimmigrant present an original of the Form I-797 receipt notice for a pending adjustment of status application upon readmission to the United States following a trip abroad in order to avoid abandonment of the adjustment of status application as a result of the departure. This rule makes no other changes to 8 CFR 245.2(a)(4)(ii)(C).
III. Rulemaking Requirements
DHS finds that this rule relates to internal agency management, procedure, and practice and therefore is exempt from the public comment requirements of the Administrative Procedure Act (APA) under 5 U.S.C. 553(b)(A). This rule does not alter substantive criteria by which USCIS will approve or deny applications or determine eligibility for any immigration benefit. Instead, this rule relieves a document presentation requirement for certain applicants for immigration benefits. Specifically, this rule removes the requirement that H-1/H-4 and L-1/L-2 nonimmigrants present a Form I-797 receipt notice for their adjustment of status applications upon readmission to the United States after a trip abroad in order to avoid having their applications abandoned. This document presentation requirement is unnecessary since it concerns information that is already available to DHS. This final rule merely eliminates an unnecessary burden on these arriving aliens and streamlines agency management of its processes. As a result, DHS is not required to provide the public with an opportunity to submit comments on the subject matter of this rule.
Moreover, DHS finds that good cause exists under 5 U.S.C. 553(b)(B) to make the rule effective upon publication in the Federal Register without prior notice and public comment on the grounds that delaying implementation of this rule to allow for public comment would be impracticable and contrary to the public interest. As a result of USCIS’s July 17, 2007, announcement that it would accept employment- based Forms I-485 filed by aliens whose priority dates are current under Department of State Visa Bulletin No. 107, USCIS received an unprecedented volume of employment-based applications for adjustment of status, including those filed by H and L nonimmigrants. Because of the recent surge in such filings, it will take several weeks for USCIS to enter the necessary data and issue Form I-797 receipt notices for employment-based adjustment of status applications. Therefore, it is important for this rule to take effect as soon as possible to avoid undue hardship on applicants who may need travel outside the United States prior to receiving the receipt notice.
In addition, no substantive rights or obligations of the affected public are changed by this rule. DHS believes the public will welcome this change. The public needs no time to conform its conduct so as to avoid violation of these regulations because the rule relieves a requirement of the existing regulations. Further, this rule will have no adverse impact on DHS’ adjudicatory responsibilities or ability to track the foreign travel of affected persons since DHS already records the admission of all nonimigrants. For these reasons, this rule is effective immediately under 5 U.S.C. 553(d)(1) and (3).
This rule relates to internal agency management, and, therefore, is exempt from the provisions of Executive Order Nos. 12630, 12988, 13045, 13132, 13175, 13211, and 13272. This rule is not considered by DHS to be a “significant regulatory action” under Executive Order 12866, section 3(f), Regulatory Planning and Review. Therefore, it has not been reviewed by the Office of Management and Budget. Further, this action is not a proposed rule requiring an initial or final regulatory flexibility analysis under the Regulatory Flexibility Act, 5 U.S.C. 601 et seq. In addition, this rule is not subject to the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. 4321 et seq., Title II of the Unfunded Mandates Reform Act of 1995, 2 U.S.C. Ch. 17A, 25, or the E-Government Act of 2002, 44 U.S.C. 3501, note.
Finally, under the Paperwork Reduction Act of 1995, Public Law 104- 13, all Departments are required to submit to the Office of Management and Budget (OMB), for review and approval, any reporting requirements inherent in a rule. This rule does not affect any information collections, reporting or recordkeeping requirements under the Paperwork Reduction Act.
List of Subjects in 8 CFR Part 245
Aliens, Immigration, Reporting and recordkeeping requirements.
Accordingly, part 245 of chapter 1 of title 8 of the Code of Federal Regulations is amended as follows:
PART 245–ADJUSTMENT OF STATUS TO THAT OF PERSON ADMITTED FOR PERMANENT RESIDENCE
1. The authority citation for part 245 continues to read as follows:
Authority: 8 U.S.C. 1101, 1103, 1182, 1255; sec. 202, Pub. L. 105-100, 111 Stat. 2160, 2193; sec. 902, Pub. L. 105-277, 112 Stat. 2681; 8 CFR part 2.
2. Section 245.2 is amended by revising paragraph (a)(4)(ii)(C) as follows:
Sec. 245.2 Application.
(a) * * *
(4) * * *
(ii) * * *
(C) The travel outside of the United States by an applicant for adjustment of status who is not under exclusion, deportation, or removal proceeding and who is in lawful H-1 or L-1 status shall not be deemed an abandonment of the application if, upon returning to this country, the alien remains eligible for H or L status, is coming to resume employment with the same employer for whom he or she had previously been authorized to work as an H-1 or L-1 nonimmigrant, and, is in possession of a valid H or L visa (if required). The travel outside of the United States by an applicant for adjustment of status who is not under exclusion, deportation, or removal proceeding and who is in lawful H-4 or L-2 status shall not be deemed an abandonment of the application if the spouse or parent of such alien through whom the H-4 or L-2 status was obtained is maintaining H-1 or L-1 status and the alien remains otherwise eligible for H-4 or L-2 status, and, the alien is in possession of a valid H-4 or L-2 visa (if required). The travel outside of the United States by an applicant for adjustment of status, who is not under exclusion, deportation, or removal proceeding and who is in lawful K-3 or K-4 status shall not be deemed an abandonment of the application if, upon returning to this country, the alien is in possession of a valid K-3 or K-4 visa and remains eligible for K-3 or K-4 status.
* * * * *
[[Page 61793]]Dated: October 15, 2007.
[FR Doc. E7-21506 Filed 10-31-07; 8:45 am]
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