Reasons Why Your L1 Visa Might Be Denied

The L-1 visa is a very useful visa for executives, managers, and specialized employees of multi-national companies who wish to come to the United States. The L-1 allows foreign companies to transfer these types of employees a parent, subsidiary, or affiliate in the United States. It also allows a company to send employees to the United States for the purpose of starting up a US subsidiary or affiliate.

In this article, we explain the general requirements for the L-1 visa and the reasons that an L-1 Visa might be denied.

What are the Requirements for an L-1 Visa?

The L-1 visa is a non-immigrant visa. So, the L-1 visa does not automatically lead to permanent residency status. However, the L-1 is a dual-intent visa. This allows the visa holder to apply for another visa or permanent residency status (a green card) while in the United States on L-1 visa status.

A major advantage of the L-1 is that there is no annual limit on the number visas issued. This is a significant limitation for many other types of non-immigrant visa. Further, there is no specific educational requirement — though executive, management, and specialized employees often have a high level of education. Also, if you are going to seek for adjustment to a green card program, the level of education and experience of the employee may become relevant.

Multinational employers with a regular or recurring need to transfer managers, executives, or specialized employees to the United States can petition for a “blanket approval”. This is a big advantage to larger multi-national companies with large subsidiary holdings or branches in a variety of countries. The blanket approval allows the company to transfer multiple employees at once rather than filing an individual petition for each employee. Further, these employees can come over at various time throughout the period of blanket approval. It’s also important to remember that L-1 visa holders are permitted to travel back and forth from the United States to their home country during the applicable L-1 visa period.

There are a few requirements for the employee to qualify for the L-1 visa. Most notably, the employee must have worked for the company for at least one full year in the preceding three years at the time of filing the petition. The position held must be as a manager, executive, or specialized employee. The regulations are very specific as to what constitutes each of these types of employee. These categories are broken down as follows:

• L-1A: This category of visa groups together managers and executives. Mangers must have a supervisory role in the company. The manager must generally supervise employees (and generally assets relevant to a particular field of operations) in a major functional area of company operations. An executive, in addition to holding the title of executive, must have responsibility for making high-level decisions. They have to the be final decision maker; that is, they do not need any higher level of approval or authorization for making these decisions. An executive title may be a director, vice president, president, corporate secretary, controller, or officer with the title of “Chief” in their names.

• L-1B: This visa category is meant for employees with specialized knowledge or skills. The categorization of specialized skill will vary depending upon the company and the role of the employee. An employee with specialized skill in one company may not be considered as specialized in another country. Generally, the employee’s knowledge or skills must make them indispensable to the company’s operations or functions. The indispensable nature of an employee can be more difficult than demonstrating the supervisory role or decision-making authority of managers or executives.

While the definitions of these roles are well defined, there is no quantitative measure for who qualifies in each category. As such, the adjudicating officers at the USCIS has final decision-making authority as to whether an employee meets the criteria.

Why Might the L-1 Visa be Applied?

There are numerous reasons an L-1 petition might be denied. To start with, the employee could fail to meet the criteria for eligibility. That is, the employee could not have been with the company for the requisite amount of time prior to submitting the petition. Further, the applicant may not be a member of a company that has multi-national operations or an intent to open a US subsidiary. The employee may not hold a managerial, executive, or specialized role in the company. If she does hold a specialized role, that role may not be sufficiently critical to company operations to qualify under the L-1B visa category. Any of these scenarios would exclude the employee’s application. Much of the ability to demonstrate specialized skill depends upon the extent of the documentation provided to the company in support of the application.

Even if the employee meets the eligibility requirements, the company and employee must still submit the required documentation for approval. Subsection 221(g) is requires adequate documentation to support eligibility. Also, the determination of eligibility is very subjective. Even if the employee appears to meet all of the eligibility criteria, under section 214(b), the USCIS officer can deny the application based upon the overall situation with the employee or the situation with the foreign company. This is generally a result of the officer not being satisfied that the employee has the intent to return to the home country at the end of the visa stay.

What Steps Can you Take if Your L-1 Visa is Denied?

The decision of the USCIS is final. There is no option or ability to appeal the decision. If your petition is denied, fortunately, you have the ability to reapply in the future. Of course, you will have to go through the entire process of submitting an entire submission. There is no express limit on the number of times that you can apply for the visa. The downside is that applying multiple times can be very costly and time consuming. You will have to submit the applicable fees with each petition.
If the application is denied for inadequate documentation under section 221(g), remedying the situation simply requires identifying and adding the additional documentation required to support the application. The rejection or denial will identify the immediate areas where the documentation is inadequate.

If the USCIS officer denies the application pursuant to 214(b), you will need to identify what information is required to demonstrate the requisite situation or position of the petitioning company or the ties of the employee to the home country. Remember, this is a subjective standard. You are trying to demonstrate that you have the intent to visit the US for work and ultimately intend to return to the home country within the period allowed by the visa. Examples of additional documentation for the economic and social ties of the applicant to the home country include: property or assets in the home country, family in the home country, and financial capability to visit and return. Remember, the USCIS officer will rely on the documentation provided as well as the information provided during the interview process. It is extremely important to include all available information in the supporting documentation.