The L-1 visa is one of the more popular visa options for professionals who want to work in the United States. Unlike the H-1B visa, it is not subject to annual caps, a required wage rate or a Labor Conditions Application. Moreover, it allows spouses and dependents on L-2 visa to also gain employment in the U.S. throughout its validity by applying for an Employment Authorization Document (EAD).
While the L-1 visa process is relatively easier and faster, not all applications get approved. The denial rates are steadily rising each year. To prevent your visa application from being denied, know the common reasons for L-1 visa denial so that you can avoid them.
1. Common types of L-1 Visa Denials
The decision to grant or deny an L-1 visa application is discretionary in nature. Still, adjudicators follow regulations and policies for fair decisions. Visa denials are often due to ineligibility, misrepresentation, or other filing errors. Among the common grounds for denial are:
2. Inability to Establish L-1 Eligibility
Both the petitioning employer and the employee beneficiary have to meet the specific eligibility requirements for an L-1 visa. Failure to demonstrate any of these requirements can lead to visa denial:
The petitioning employer must be a parent/subsidiary, branch, or affiliate of the foreign company, or establish common ownership or control. The company must also be actively engaged in business in the United States and at least one other country for the duration of the L-1 visa validity.
For an L-1A visa, the employee must work in an executive or managerial capacity. The employee must have the ability to make vital decisions and oversee other employees.
L-1B visa applicants must demonstrate specialized knowledge. They must possess knowledge or skills that are essential to the company. This specialized knowledge must also be something that can’t be easily provided by resident workers.
3. Misrepresentation of Work Experience
Some applicants misrepresent work experience gained in other countries or the period of employment with their company. To qualify for an L-1 visa, a beneficiary must have been employed in an executive, managerial, or specialized knowledge capacity. A beneficiary must also satisfy the one-year foreign employment requirement. This must be within the last three years before filing a petition and must have been spent abroad. Any period a beneficiary works in the United States for the petitioning company does not count toward the one-year requirement.
4. Insufficient Staff or Work
The L-1A visa is given to professionals who will be employed in a managerial or executive capacity. To be approved, they must play an essential role in overseeing other employees at a supervisorial level or have other sufficient executive-level work. While immigration laws do not stipulate a minimum number of employees that a petitioning employer should have, those with very lean staff and are unable to demonstrate other sufficient executive-level work can have their application denied. An L-1A may be approved for a company that is able to demonstrate that it want to open its initial office in the U.S.
5. Inability to Meet Salary Standards
While the L-1 visa does not require a certified Labor Condition Application, the employer still has to meet reasonable salary standards. If there is a significant difference between the petitioner’s proposed wage and the standard range in the industry, the visa might be denied.
6. Incorrect Information or Missing Supporting Evidence
Errors such as misspelled names, incorrect job titles, inaccurate job descriptions, and wrong information result in a visa denial. Failure to submit supporting evidence and relevant documentation may also get the application denied.
7. Overstated Business Growth Projections
The United States Citizenship and Immigration Services (USCIS) scrutinizes the current state and potential growth of petitioning business organizations. The company must be able to establish that it is a legitimate business that has or expects to have a substantial legitimate business in the U.S. However, petitioning employers must refrain from exaggerating their business growth projections. If these do not reflect industry standards, it might lead to initial L-1 visa denial, or if they are unable to meet exaggerated business growth projections future L-1 visa renewals may be denied.
8. Denial of L-1 Visa Extension
The L-1 visa is valid for up to three years. After this period, you can file for an L-1 extension. However, your L-1 status does not automatically qualify you for an extension. The USCIS can deny your petition for an extension if you are unable to prove that:
You have been employed throughout your prior L-1 stay in the U.S. per L-1 requirements
Your job responsibilities and wage still meet the L-1 eligibility requirements
The company continues to maintain a qualifying relationship with the foreign entity, and that both the companies continue to be in business
If you cannot prove these, your extension may be denied. You can consult an immigration attorney to increase your chances of getting an L-1 visa extension.
10. What to Do When You Get Denied
If your L-1 visa application is denied, you will receive a denial or revocation notice, which includes your rights to appeal or motion to reopen. You have several recourses, including filing an appeal and applying for another visa category.
11. File an Appeal or a Motion to Reopen
Your denial notice specifies which form you should use to file your appeal or motion to reopen the case. It will also indicate where and when to file the form. You can file an appeal with the Administrative Appeals Office (AAO), or motion to reopen the case with USCIS, but these usually takes more than six months. Also, the AAO often affirms the decision made by the USCIS. This is why most visa attorneys recommend filing an appeal directly to the U.S. District Court.
Going through an L-1 appeal or motion to reopen can be daunting. You need to prepare your documents and file the appeal within 30 days from the date of the decision. There is no extension beyond this period, so you must act promptly. You must also give a sufficient explanation and supporting evidence to show that the decision was wrongful. To increase the chances of getting your appeal approved, consult a lawyer who specializes in immigration law.
12. Refile the Case
In some case, if your L-1 is denied, you may want to consider filing a new L-1 petition. This may be the quickest and most economical way. You should discuss this option with an experienced immigration attorney.
13. Consider Other Visa Options
If you do not want to file an appeal or miss the filing deadline, you can consider other visa options, such as an H-1B visa. Check if you and your employer both meet the eligibility requirements. If you are eligible for an L-1A and have a bachelor’s degree, you are likely to be eligible for an H-1B as well.
14. Consult a Visa Attorney
Receiving a denial notice can be distressing, and deciding what to do next can be confusing. It is best to consult with a lawyer to determine all the possible options available for you. A visa attorney can advise you on the best course of action and guide you throughout the entire process.
Ensuring complete documentation, proper filing, and payment fees can be daunting. To be approved for an L-1 visa, you must make sure that all required documents are filled out properly and filed on time. There are also new regulations that might be confusing for those not familiar with immigration law. So it’s always best to work with an immigration attorney who can assess your situation and ensure that your petition is filed properly.
Consult with an L-1 visa lawyer who has extensive knowledge of immigration laws, particularly in business and employment immigration. At Ramchand & Raval, our immgration lawyers have the expertise guide you through the L-1 process.
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