United States Citizenship and Immigration Services (“USCIS”) adjudicators have been giving heightened scrutiny to U.S. employers’ I-129 Petitions for L-1B status on behalf of “intracompany transferees.”   These individuals are employees of U.S. employers’ foreign-based affiliates, subsidiaries or parent companies who possess “specialized knowledge.” Such knowledge is defined as particularized knowledge “of the organization’s product, service, research, equipment, techniques, management, or other interests and its application in international markets,” or “an advanced level of knowledge or expertise in the organization’s processes and procedures.”  USCIS adjudicators review U.S. employers’ petitions and have the authority to approve or deny those them, thus having the authority over employers’ ability to employ selected foreign national employees in the U.S.

Recent data shows that USCIS has continued its aggressive review of employers’ L-1B petitions.  In FY 2006 and FY 2007, respectively, the denial rate for such petitions was 6% and 7%.  The denial rate then spiked dramatically to 22% in FY 2008 – a new, unmistakable indictor of   stricter agency  review of L-1B petitions.  In FY 2011, the denial rate had risen to a whopping 27%, meaning that more than one quarter of L-1B petitions filed were denied.  Remarkably, USCIS has managed to increase those numbers.  New data shows that in FY 2012 and FY 2013, respectively, denials rose to 30% and 34%.

In addition, U.S. employers can continue to expect costly and time-consuming requests for evidence (RFE) from USCIS in response to their petitions.  USCIS adjudicators issue RFEs to obtain additional, purportedly necessary information prior to reaching a final decision on  L-1B petitions, and were issued in 63% of cases in FY 2011.  After a backlash from U.S. employers and practitioners, RFE rates have dropped to 43% and 46%, respectively, in FY 2012 and FY 2013.  Still, employers can count on receiving RFEs for roughly half of the petitions they file, and thus must plan for delays, interruptions, or cancellations of important projects or initiatives in the absence of their needed and scheduled workforce.

Because U.S. employers select carefully qualified intracompany transferees who will satisfy the L-1B specialized knowledge standard, the USCIS denial and RFE rates are viewed by many as  staggeringly high and suggest that USCIS may be imposing heightened standards in  disregard of the language and purpose of the  applicable regulations.  But those rates persist.  Just over one-third of all L-1B petitions are denied.  Furthermore, employers receive RFEs in nearly half of their cases, delaying company plans and increasing costs.  Before assuming employees will be able to work in L-1B status and making definitive staffing plans as to company projects, U.S. employers should consult with counsel regarding  the chances of approval and potential employment start dates in particular cases.

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Photo of Forrest G. Read IV Forrest G. Read IV

Forrest Read is a Principal in the Raleigh, North Carolina, office of Jackson Lewis P.C. He has extensive experience in both business immigration law and employment law and has particular focus in legal issues in graduate medical education (GME).

Mr. Read’s immigration practice…

Forrest Read is a Principal in the Raleigh, North Carolina, office of Jackson Lewis P.C. He has extensive experience in both business immigration law and employment law and has particular focus in legal issues in graduate medical education (GME).

Mr. Read’s immigration practice focuses on assisting employers in obtaining employment-based nonimmigrant visas (e.g., H-1B, L, O, TN) for foreign national employees and work-related immigrant (green card) visas, including PERM Labor Certifications, and advising employers on compliance with U.S. immigration laws and regulations. He has broad experience in advising large, mid-size and small employers on their various immigration needs and developing strategies to help them navigate through complex immigration issues. He also has particular experience in counseling employers in the health care industry and addressing immigration-related issues that arise for their broad range of health care professional employees (including advising on and obtaining employment authorization for medical residents and fellows and obtaining J-1 visa waivers for foreign national physicians completing their medical training in the United States). His immigration practice also includes defending employers in connection with Department of Labor H-1B and H-2B investigations.

Mr. Read’s employment law experience includes representing management, particularly academic medical centers in the GME context, in a wide array of workplace disputes and litigation before federal and state courts and administrative agencies, including matters related to discrimination, retaliation, harassment, disability, family and medical leave, various wage and hour issues, contracts, and intentional torts. He advises academic medical centers on the interplay between applicable academic law and employment law and the ramifications of what are divergent legal requirements and standards. Mr. Read also provides counsel with respect to the legal impact of competency standards for residents and trainees in GME, including situations involving discipline, remediation, and dismissal. He provides advice and guidance in the peer review process, including provision of verification and assessment of training in response to third party inquiries.

As a member of the Firm’s Corporate Diversity Counseling group, Mr. Read also has experience in providing assessments and making recommendations to corporate and institutional clients with respect to diversity and inclusion policies and initiatives, conducting related internal investigations, and shaping, developing and enforcing effective policies and initiatives to ensure consistency with client values and in furtherance of business goals and objectives.