Trends In USCIS Processing Of L-1B Petitions

Analysis of new data obtained from U.S. Citizenship and Immigration Services ("USCIS") reveals a dramatic increase in the number of L-1B Non Immigrant visa petitions filed, approved and denied, as well as the number of Requests for Evidence ("RFEs") issued by the two Service Centers responsible for processing L-1 petitions, the California Service Center ("CSC") and the Vermont Service Center ("VSC"). This data was released in response to a Freedom of Information request filed by the American Immigration Law Association ("AILA").

As you can see from the chart below, the data reveals an increase in L-1B denial from 27% in FY2011 to 30% in FY2012 and 34% in FY2013.  These rates mark a distinct trend in steep increases from prior years:  7% in 2007, 22% in 2008, 26% in 2009, and 22% in 2010, despite the fact that there has been no change in the law or regulations related to L-1B visa.

The information indicates that USCIS has clearly changed its internal standard for adjudicating L-1B petitions and further, that there may be different internal standards at each of the Service Centers, given the higher number of RFEs and denials from the CSC.
The L-1B visa classification is available to key employees, with specialized knowledge, of multinational companies (called "intracompany transferees"). The L-1B visa requires that the employee has been employed abroad for one full year during the preceding three years by a foreign entity related to the U.S. company as a parent, branch, subsidiary or affiliate who has acquired specialized knowledge of the company's business, operations, services and/or products.

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Posted in: Immigration News , U.S. Citizenship and Immigration Services , US Visa , USCIS

More Countries Added as Eligible Applicants for H-2A and H-2B Visas

US Citizenship and Immigration Services (USCIS) announced last week that there have been five more countries added to the list of eligible nationals who can participate in the H-2A and H-2B programs in 2012. This brings the lists total to 58 countries. The list of Countries will be reviewed again one year from the date of publication.

The H-2A and H-2B programs allow US employers to bring foreign workers to the US in order to fill temporary agricultural jobs and temporary non-agricultural jobs. USCIS generally may only approve H-2A and H-2B petitions for nationals of countries that are designated as eligible to participate in the programs. USCIS may also approve H-2A and H-2B petitions for nationals of countries not on the list if it is determined to be in the interest of the US; this is taken on a case by case basis. In addition to the 53 countries currently on the list, the following five countries were added for 2012: Haiti, Iceland, Montenegro, Spain and Switzerland.

Effective 18 January 2012, nationals of the following 58 countries are eligible to participate in the H-2A and H-2B programs: Argentina, Australia, Barbados, Belize, Brazil, Bulgaria, Canada, Chile, Costa Rica, Croatia, Dominican Republic, Ecuador, El Salvador, Estonia, Ethiopia, Fiji, Guatemala, Haiti, Honduras, Hungary, Iceland, Ireland, Israel, Jamaica, Japan, Kiribati, Latvia, Lithuania, Macedonia, Mexico, Moldova, Montenegro, Nauru, the Netherlands, Nicaragua, New Zealand, Norway, Papua New Guinea, Peru, Philippines, Poland, Romania, Samoa, Serbia, Slovakia, Slovenia, Solomon Islands, South Africa, South Korea, Spain, Switzerland, Tonga, Turkey, Tuvalu, Ukraine, United Kingdom, Uruguay and Vanuatu.

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Posted in: H-2A visa , H-2b visa , US Embassy , US Visa , USCIS

Processing Waivers for Family Members Reduced from Years to Months

Last Jan. 6, 2012, U.S. Citizenship and Immigration Services (USCIS) posted a notice of intent in the Federal Register outlining its plan to reduce the time that U.S. citizens are separated from their spouses and children under certain circumstances while those family members go through the process of becoming legal immigrants to the United States.  Currently, spouses and sons and daughters of U.S. citizens who have accrued a certain period of unlawful presence in the United States, and have to leave the country as part of the legal immigration process, are barred from returning to their families for as long as 3 or 10 years.  They can receive a waiver to allow them to return to their families by showing that their U.S. citizen family member would face extreme hardship as a result of the separation.  This proposal would streamline the processing of these individuals’ waiver applications based on unlawful presence; USCIS proposes to process their waiver applications in the United States before any American family faces separation.  The process would only apply to immigrants who are eligible for a US visa.

Under the proposed process, the spouses and children of U.S. citizens who are eligible for a visa to immigrate legally to the United States, but who need a waiver of inadmissibility for unlawful presence in order to obtain that visa expeditiously, would apply for a provisional waiver before leaving the United States to have their immigrant visa application processed at a U.S. embassy or consulate abroad (as they must pursuant to law).  The notice limits the streamlined process to those individuals who are inadmissible based solely on having accrued a period of unlawful presence and – pursuant to statutory requirements – who can demonstrate extreme hardship to their U.S. citizen relative.  All individuals affected by this streamlined process would need to meet all legal requirements for admission to the United States, including the requirement that they process their visa application at a U.S. consulate abroad.

With the change outlined in the notice, individuals who currently qualify for a waiver of inadmissibility under the existing eligibility standards, and who can demonstrate that separation from their U.S. citizen spouse or parent would cause extreme hardship to that relative, would be allowed to apply for a waiver while still in the U.S.  By allowing these individuals to apply for waivers in the U.S. and making a provisional determination of waiver eligibility before the individuals must depart the country for visa processing, USCIS would provide a more predictable and transparent process and improved processing times, minimizing the separation of U.S. citizens from their families. The change would also streamline the process for both USCIS and the Department of State (DOS) when handling requests for these waivers.  As a result, this change would encourage individuals who may be eligible for a waiver of inadmissibility to seek lawful readmission to the United States by limiting the amount of time they would need to spend away from their U.S. citizen spouse or parent.

Following publication of this notice, USCIS will undertake further analysis and collaborate with the Department of State to develop the streamlined process in greater detail.  USCIS plans to publish a notice of proposed rulemaking in the coming months that will provide additional details and allow the opportunity for public comment.  A final rule will then be published to implement the streamlined process.  The rule will not modify the underlying standard for assessing whether denial of the waiver would result in extreme hardship to the U.S. citizen spouse or parent of such individuals.  It would modify only the process by which these applications may be filed and accepted by USCIS for processing.

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Posted in: US Embassy , us immigration , US Visa , USCIS