US immigration says L-1B visa process is 'too subjective'

A report by the Office of the Inspector General (OIG) of the US Department of Homeland Security (DOH) has claimed that US immigration staff find it difficult to assess whether applicants for L-1B visas have 'specialized knowledge'.

L1 visas are intra-company transfer visas which allow international companies to transfer a member of staff, who has worked for them for at least one year in the last three years, to work in the US from its operations elsewhere.

There are two distinct L1 visas;

• L1-A visas for managers and executives and
• L1-B visas for staff with 'specialized knowledge'

Specialized knowledge

'Specialized knowledge' is defined on the US Citizenship and Immigration Services (USCIS) website as 'either special knowledge possessed by an individual of the petitioning 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 '.

In recent years, many international companies have complained that it has become harder to obtain L-1B visas despite the fact that there have been no changes in the rules. Critics of the system say that this must mean that the 'specialized knowledge' test must be being applied differently.

Now the OIG report may have discovered why; USCIS staff have complained that the 'specialized knowledge' test is too subjective. Many suspect that US immigration staff are under pressure to refuse visa applications and are therefore finding that applicants do not have specialized knowledge when they clearly do.

'You know it when you see it'

The OIG report says that USCIS adjudicators assess whether an applicant is in possession of 'specialized knowledge' using a simple 'you know it when you see it' test. Clearly, because there are no hard and fast rules about what is, and what is not, specialized knowledge, decisions are bound to be extremely subjective and will vary depending on which USCIS visa officer is looking at the application.

International companies have been complaining about inconsistency in USCIS decision making for some time. In 2012, Oracle complained that more of its applications for L-1B visas were being refused and there was no way of predicting which applications would be successful.

Denise Rahmani, an Oracle director told BusinessWeek magazine in 2012 'it used to be that none of them [L-1B petitions] got rejected [whereas today] it feels like the roll of the dice every time… They [USCIS staff] don't seem qualified to judge and assess what we deem as the right resource to do a job or deliver a project'

Guidebook author found not to have specialized knowledge

Ms Rahmani complained that one Oracle employee failed the 'specialized knowledge' test even though he had written the guidebook for a computer programme that Oracle wanted him to work on in the US.

Sanwar Ali of workpermit.com said 'the 'specialized knowledge' test will vary greatly depending on which visa officer is looking at the case. It is therefore, to some extent, a lottery as to whether an application will be successful or not.

'However, there are some things that you can do in order to increase your chances of success. You should make sure that you provide documentation that fully deals with all the requirements of the L-1 visa petition.

Professional advice

Unfortunately, it is very difficult (if not impossible!) to tell from the USCIS instructions exactly what documents should be submitted with the L-1 petition.

'You will stand a better chance of success if you engage an experienced US immigration lawyer to help you with your petition. At workpermit.com, we have in-house US immigration attorneys who prepare L-1B and L-1A petitions. Please give us a call.

If you would like US visa advice, workpermit.com can help. WorkPermit.com is a specialist visa consultancy with 25 years of experience dealing with visa applications. We can help with a wide range of visa applications to your country of choice. Please feel free to contact us for further details.