As the Trump administration has implemented new rules to restrict the availability of L visas, it is undeniable that qualifying for this visa has become more of a challenge in the past few years. However, certain trends have emerged. Here are the top 5 reasons why a L-1 visa application may be denied and how to avoid such issues.
1) Insufficient Managerial or Executive Experience
In order to qualify for the L-1A visa, the beneficiary must have been working for a qualifying organization abroad for one continuous year within the three years immediately preceding his or her admission to the United States; and be seeking to enter the United States to provide service in an executive or managerial capacity for a branch of the same employer or one of its qualifying organizations. Executive capacity generally refers to the employee’s ability to make decisions of wide latitude without much oversight. Managerial capacity generally refers to the ability of the employee to supervise and control the work of professional employees and to manage the organization, or a department, subdivision, function, or component of the organization. It may also refer to the employee’s ability to manage an essential function of the organization at a high level, without direct supervision of others.
Employers make it easy for immigration officers to deny their L-1A applications by sponsoring candidates for L visas who do not have true executive or managerial experience. There has been a clear trend in recent years of immigration officers not accepting on face value of the employer’s assertions that a specific individual will fulfill an executive or managerial role. As such, it is fundamental for employers to provide evidence how the beneficiary’s role was executive or managerial in the past, and how the role will continue to be executive or managerial in the future. When a company is not able to cooperate with their attorneys and provide sufficient documentation either because of incompetence or internal company politics, it is likely that the application will be denied.
2) Poor English language skills
At the consular interview, L-1A applicants who are not able to adequately describe in English their job responsibilities and intended work in the United States undercut the credibility of their claimed expertise and specialization. Therefore, it is essential for applicants to thoroughly understand their job position and the contents of the immigration application. They should also practice explaining this information in English before attending the interview at the consulate.
3) Low salaries
Someone claiming executive or managerial qualities who will be receiving a modest salary more commonly paid to administrative or support staff is going to have problems convincing a consular officer they merit visa issuance. It is essential that the manager or executive be paid at least the market rate in the United States for a similar position.
5) Newly-promoted executives
Although immigration law allows for someone to qualify for the L-1A visa if they were recently promoted, such an arrangement raises questions in the immigration office is mine concerning the applicants past role. Such concerns are more likely when the foreign office is a smaller family-run operation or when the newly promoted manager has not been with the company for long period of time.
6) Nothing to manage in the U.S. enterprise
If a company wishes to transfer someone to manage a newly established start-up in the United States, it must demonstrate that the start up will have assets and employees to manage within the first year of its operation. A manager tasked with setting up a sales office in the United States, for example, will need to make the case that his or her role is to hire and supervise a staff to carry out those sales, not just to work alongside them in engaging with customers.
Immigration officers are clearly applying a narrower interpretation of L-1A visa requirements after many years of taking a more relaxed approach; however, the biggest reason why this visa may be denied is a poorly prepared immigration application. Businesses that are unable to provide sufficient documents to their attorneys ultimately are unlikely to obtain the visa for their employees.
Immigration law can be convoluted and complex. At the Law Offices of Marcus Yi, our NYC based lawyers are devoted to guiding you through US immigration law. Contact us today to schedule a consultation.