L-1 Visa Appeals
The L-1 Visa is designed for employees of companies that do business in both the United States and a foreign country. The L-1 is highly desirable, as it is not subject to annual caps and the lottery system, like H-1B Visas.
The are 2 kinds of L-1 Visas: the L-1A and the L-1B.
The L-1A is for managers and executives. The
L-1B is for specialized employees.
Reasons for Denials
In L-1A petitions, one of the most common ground for denials is whether the beneficiary was employed in a managerial capacity. According to USCIS, a manager is one that control the work of other professionals.
The second most common ground for an L1A Visa denial is that the U.S. company does not have a sufficient number of employees. However, Federal law does not indicate a minimum number of employees that L-1A workers will have to supervise.
In L-1B petitions, it has become almost impossible to convince USCIS that the position involves specialized knowledge. Nowadays, the L-1B Visa denial rate is extremely high, allegedly over 75%.
If an L-1 petition is denied, an appeal can be filed with the Administrative Appeals Office ("AAO"). The AAO decides appeals in no less than 6 months in most cases. Moreover, in most cases, the AAO affirms the USCIS denial, which makes the administrative appeal process absolutely useless. I cannot imagine there is any company that can wait 6 months to know whether an employee can be granted his or her Visa.
However, a denied L-1 Visa petition can, in some cases, be appealed directly to a U.S. District Court.
This is a short list of common USCIS tactics used in denying L-1 Visa petitions:
- Request specific evidence at the RFE stage and then disregard it in the decision
- Consider only specific aspects of the evidence submitted, twisting its meaning;
- Provide a generic denial that recites milestone AAO cases and burden of proof for a petitioner
An appeal is not required prior to seeking judicial review if: (1) there is no statute or regulation that mandates an appeal to the AAO, or, (2) even if there is such a statute or regulation, it does not stay the agency decision pending the outcome of the appeal.
The standard of review in District Court is limited to whether the denial was arbitrary, capricious, or not in accordance to law.
To succeed in a District Court action, it is necessary to show that the denial is not the product of USCIS expertise. As a matter of fact, USCIS adjudicators have no expertise whatsoever, and in the vast majority of cases they are not in a position to write a denial that meaningfully applies the law to the facts of the case.
Hire an Immigration Attorney to Win Your L-1 Visa Appeal
If your L-1 Visa was denied, and you do not want to waste time and efforts with an AAO appeal, you should consider filing a lawsuit against USCIS under the APA. A well-written and articulated brief showing to a Federal Court that the USCIS decision is irrational and arbitrary can possibly force the U.S. Government to settle the case and grant the Visa.
As a New Jersey Immigration Lawyer, I have handled many cases in District Court against USCIS, including petitions for a
Writ of Mandamus, Writ of Habeas Corpus, I-130 and
L-1B Visa appeals. To learn whether you can appeal your L-1A Visa denial, please
contact my office or fill out a
case evaluation form.