When the L intra-company transferee visa category was created in 1970, the international footprint of most U.S. businesses was pretty small. The U.S. economy was overwhelmingly focused on the domestic market, and the demand for L visas was low. In 1991, for instance, twenty years after the category was created, only 16,109 L visas were issued by consular officers. Back then, INS approved the vast majority of L visa petitions , and both INS adjudicators and U.S. consuls tended to give considerable weight to the employer’s assertions that the employees being transferred were highly specialized professionals or key managers and executives. Because most of the applicants were working for recognized U.S. or international firms, the petitioners didn’t have to jump through hoops to demonstrate their corporate existence or explain their business models. Requests for Additional Evidence (RFEs) when the initial L petition and supporting documents didn’t make the case for L eligibility were unusual, and consuls rarely returned an approved L petition for further review or possible revocation.
Fast forward to 2013, the most recent year for which statistics on visa issuances are available. That year 66,700 L visas were issued–over four times the number in 1991. U.S. companies are hyper-active in the international market, and more and more foreign companies open offices in the U.S. each year and seek to transfer key employees to work there. The basic requirements for L eligibility haven’t changed–but because so many more individuals are seeking to qualify in this category, both CIS adjudicators and State Department consular officers are taking a much closer look at whether beneficiaries really have the expertise claimed for them. Just because an employer presents an intended transferee as being skilled, specialized, or managerial isn’t enough any more–these days, more is required to make the case. RFEs are far more common.
The problem is particularly challenging for businesses that send large numbers of L’s to the US as specialized professionals under blanket petitions, which give consular officers, not CIS, the responsibility to determine if the individual has met the L requirements. If too many beneficiaries claim the same level of unusual expertise, sooner or later a consular officer is going to question how specialized they really are within the company when so many others have their same skill set. And claimed managerial expertise may not stand unless it is backed up by persuasive evidence to confirm that the intended role is truly managerial.
The fact is that a shortage of workable visa options for foreign workers has driven too many employers to pursue L visas for employees or recent hires who can’t easily satisfy the requirement of being a specialized knowledge professional or a genuine manager/executive. Each time a consul or CIS adjudicator encounters a relatively junior worker whose employer claims he has a highly specialized skill set, or an alleged manager whose position doesn’t appear to be genuinely managerial, attitudes harden and skepticism grows. From the consular perspective, it seems that while L standards remain the same, the relative quality of applicants has declined.
With more and more L applications being challenged, employers need to up their game when it comes to their transfer candidates and the evidence of their eligibility. Original petition filings need to be accompanied by organizational charts, pay stubs, evidence of awards or specialized training, and detailed job descriptions and the credentials of the employees supervised, to give credibility to claimed specialization or managerial responsibility. Blanket L applicants need to be carefully prepared to be able to demonstrate and justify to the consul the claims made on their behalf in their supporting documents. And employers also need to face facts sooner in the process–quite possibly, not every employee they want to transfer is going to be able to qualify for L status. It’s better to determine this at the start, so that alternatives can be carefully considered, than to have to pursue time consuming, expensive, and potentially unsuccessful L filings.