Specialized Work Visa Denials on the Rise

By Briana Vannozzi

It’s getting tougher for foreign nationals to get into the country under specialized work visas. A report analyzing data from the USCIS, or Citizen and Immigration Services, finds that 35 percent of petitions to bring high-skilled workers to U.S. companies are denied.

“With my filings and my clients I actually see a little bit of a higher percentage of denials,” said immigration attorney Marta Cruz Gold.

In fact the numbers have been rapidly climbing since 2006 when denials for specialized knowledge visas known as L1-Bs were as low as 6 percent. The National Foundation for American Policy also found big differences in denial rates by country. The highest of which were Indian nationals with a 56 percent denial rate. Followed by Chinese at 22 percent, Mexican nationals at 21, french 19 percent and British 16.

“I have a very large number of Indian clientele and I happen to see the large numbers in India. I do see a lot of inconsistency with the consular post in India specifically. I find that the report is consistent with my experience with France. They tend to be a little tougher on the Ls,” said Cruz Gold.

Cruz Gold runs an immigration law firm in Mercer County and explains a lot of the denials and hang-ups have to do simply with a lack of guidelines.

“So there’s no communication between the denial that occurred here at the USCIS Department of Homeland Security level and the denial that applies over with the Department of State level. They’re just not talking to each other,” she said.

The program is intended to help employers find skilled workers not already living in the U.S. But it’s also for companies starting up in America who need their foreign national counterparts with institutional knowledge on the products or services. But Cruz Gold says there’s a lot of wiggle room to approve that.

“There’s been no updated information provided to the adjudicators, the officers making these decisions. So it’s very subjective. You know what’s specialized knowledge to officer A may not be specialized knowledge to officer B because he may feel that the company has the resources to find alternate workers in the U.S. and that you could train them with that knowledge so it’s a very subjective process,” she said.

Surprisingly, USCIS denies the L-1B, or specialized knowledge petitions, at a higher rate for employees already working in the U.S. and looking to extend their status — at 41 percent. But just 32 percent of new applicants are denied.

In total, 85,000 visas under the H-1B program are granted each year. That’s for high-tech foreign workers.

“The definitions have changed because our economy has changed because the global needs have changed because the production processes have changed. You can’t operate in 2015 on standards that were set pre-2006 so they need to provide more guidance and a clear definition of scope of what it really means to have specialized knowledge,” Cruz Gold said.

She and her counterparts in immigration law offices around the country are waiting on baited breath for proposed changes that have been presented to the Obama administration, but have so far remained in the draft stage.