A denial by U.S. Citizenship and Immigration Service (USCIS) for an L-1 visa petition is not the end of the journey for transferring a valuable manager or specialized knowledge employee to the United States. The L-1 visa has been a vital tool for multinational companies seeking to transfer managers and specialized knowledge employees from overseas offices to the U.S. for decades. In recent years, USCIS has placed such an exceedingly strict level of scrutiny on L-1 visa petitions that employers are now seeing denials on routine L-1 cases, with some of the more egregious denials from USCIS overturned upon appeal.
When faced with a USCIS denial on an L-1 petition, there are two primary avenues for an employer to respond:
1. Appeal through the USCIS
2. Reapply by filing a new petition with the USCIS
An employer may appeal a USCIS denial. Unfortunately, this process involves asking USCIS to reconsider its own decision. While this process can prove frustrating and lengthy (8-14 months), the American Immigration Lawyers Association (AILA) has published three recent opinions from the USCIS Administrative Appeals Office (AAO) that give hope to employers that receive egregious denials. Between November 10, 2014 and December 1, 2014, the AAO issued three scathing opinions in favor of three different U.S. employers seeking to employ qualifying foreign managers in L-1A visa status in the U.S. to: (a) oversee operations of a successful sushi restaurant; (b) manage a team of senior software engineers; and (c) run multiple hotel operations. Below are three particularly telling quotes, one from each AAO case:
- Restaurant manager – “The director’s determination appears to be based on erroneous conclusions of fact and misapplication of the statute and regulation”
- Software manager – “The Director incorrectly stated that the petitioner failed to submit the requested [job description]. It appears that the director overlooked the fact that the beneficiary will assume the same position in the United States … and as such, the position description and breakdown of duties provided … applies to both of the beneficiary’s positions.”
- Hotel manager – “the evidence submitted establishes that is more likely than not that the beneficiary will oversee subordinate managers and supervisors … ”
While all three of these cases are non-precedent decisions and will not carry weight for future USCIS adjudications, it is hard to imagine that the USCIS Directors who signed the original denials will wish to continue having these types of statements written about their work. Further, the employers may reference these opinions in future L-1 petitions with USCIS, if for no other reason than to remind USCIS of the bona fide nature of prior petitions.
Following the denial of the first L-1 visa petition by USCIS, an employer may prepare a second petition on behalf of the same employee for the same (or similar) offered position in the U.S. This option is particularly helpful where the denial was clearly in error and time is of the essence.
First, the employer must address the issues raised by the USCIS in its first denial letter. The second case might get assigned to the same officer as the first case, so the employer will need to think of a more persuasive way to convince this officer of the employee’s qualifications for the L-1 benefit. Even if the second petition is assigned to a new officer, the second officer will have access to the prior denial associated with the case, and s/he may even walk down the hall to see the original denying officer for input on the second petition.
If the employer elects to utilize premium processing for the second petition, it will receive a response from USCIS within fifteen calendar days from the date of receipt. USCIS is currently showing processing times of only one month for cases without premium processing. While both timelines could be extended by a request for additional evidence (RFE), this is likely to add no more than four additional months of time to the case, keeping the timeline well short of the 8-14 month timeline for appeal.
While “appeal” is the word most freely associated with responding to a “denial,” U.S. employers would do well to start thinking about the process to “reapply” after a USCIS denial of an L-1 petition.
Posted by: Andy Finkle, Associate Attorney