Many business immigration practitioners point to the undeniable fact that qualifying for L visas has become more difficult as evidence that the Trump administration has implemented new rules to restrict the availability of those visa categories. Consular officers have actually been applying more narrowinterpretationsoftheregulationsgoverningthesevisacategoriesforthepastseveral years.

 

In light of this, it is now more important than ever to understand what these red flags are and how their existence makes it harder for consular officers to approve L visa applications that give rise to them.

 

Red Flags in L Visa Applications

 

Consuls know that the L visa is for two kinds of individuals – 1) for specialized skilled knowledge professionals, and 2) executive-level managers and supervisors. They are also aware that far more people are applying for L visas now than ever before. In 1997, for example, the Department of State processed 80,065 L visa cases; 20 years later, in 2017, it processed 163,542 applications, over twice as many. A direct consequence of this striking increase in L applications is an increased skepticism by many consular officers about the genuine credentials of many of the L applicants they adjudicate.

 

1)    Insufficient specialized knowledge

Employers feed consular skepticism by sponsoring candidates for L visas who may have marginal specialized knowledge and experience. This is particularly true for blanket employers who have a past pattern of sending large numbers of “specialized” workers to their U.S. operations. Consular officers who regularly see high numbers of computer programmers with the same generic job description being transferred to a U.S. operation will, understandably, wonder just how specialized a worker can be if every other applicant from that company has the same skill set. Moreover, there has been a clear trend in recent years of consular officers not accepting on face value the employer’s assertions that a specific individual will fill a specialized role. The applicant may find himself compelled to demonstrate just how unusual his skill set is compared to his colleagues, which many are poorly prepared to do.

 

Because of this, it is essential to spend time preparing L-1B applicants to clearly articulate their specialized expertise at their visa interviews. Successful applicants should be able to draw clear distinctions between the work they do and that done by their colleagues. They must be able to demonstrate levels of training, experience, and innovation not shared by others in their units or teams, and explain why that expertise is not available in the United States. An applicant who simply repeats that he is specialized or has an unusual skill set will not persuade.

 

2)    Poor English language skills

L-1 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 function.

3)    Low salaries

Someone claiming specialized professional knowledge 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. Careful consular scrutiny is also more likely when the applicant is to remain on the foreign payroll and receive only per diem and other allowances while in the United States.

4)    Functional managers who don’t manage

If a so-called manager has no direct responsibility to manage the work of other individuals, no direct reports, and no hire and fire authority, he or she will have a harder time gaining L-1A visa approval no matter what the company says about their managerial role. Consuls are looking for confirmation that the functional manager applicant has authority within the company over decisions and policies governing a key function, and that exercising that authority, rather than carrying out tasks assigned by another manager, forms the lion’s share of his or her responsibilities within the company.

 

5)    Newly-minted executives

Although the regulations allow someone to qualify for an L-1A executive/managerial visa if they were recently promoted or if their position overseas is a specialized knowledge position, such an arrangement raises credibility questions in the consul’s mind both concerning the applicant’s past role with the foreign office. Consuls will expect such applicants to be able to make a persuasive argument why their job performance merited rapid promotion, and why their skill set in the foreign office clearly qualifies them to fill a managerial role in the United States.

 

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. Someone seeking to obtain another L-1A visa following the first year of a start-up’s operations who remains the only U.S. employee will have a harder time qualifying than someone in a similar enterprise who has used the initial L-1A approval period to set up an actual office, hire people to manage, and establish a genuine supervisory/executive role for herself.

 

Conclusion

Consular  officers  are  clearly  applying  a  narrower  interpretation  of  the  relevant       L visa requirements after many years of taking a more relaxed approach; however, the biggest red flag of all for consular officers adjudicating L visa applicants remains a poorly prepared applicant. These days, this means an applicant who does not understand the purpose of the visa for which he or she is applying, who cannot describe a credible specialized professional role or a viable business endeavor that will grow and prosper, or who fails to persuade as a manager or executive. No amount of careful documentary preparation by immigration counsel will persuade a consul to issue a visa to an applicant who is not capable of making a credible argument why their application merits approval.

 

We provide special consulting on L-1 interview preparation. Please feel free contacting us.