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L-1B Denials Particularly High for Indian Nationals

L-1B classification was initially created by Congress to allow multinational companies to easily transfer employers from foreign operations to intra-company offices in the United States. To receive L-1B classification the applicant must work abroad for the overseas arm of the US employer for one continuous year and demonstrate that he has “specialized knowledge” in relation to the employer’s organization.people-at-work-4-37060-m

When Congress created this classification, “specialized knowledge” was not well defined. The lack of guidance on the meaning of “specialized knowledge” has led to many denials.

L-1B denials are at an all time high The National Foundation for American Policy (NFAP) just released a report analyzing L-1B denials. The report revealed that L-1B denials have reached a staggering rate of 35% for the 2014 fiscal year. In 2006 the L-1B denial rate was only 6% but this rate climbed to 22% in 2008 and steadily increased each year.


Indian nationals experiencing high denial rate India is experiencing particularly high denials of L-1B visas. In its report NFAP reveals that between the fiscal years 2012 and 2014, Indian nationals were denied L-1B visa classification at a rate of 56%. During the same time period denials of L-1B visas all other countries besides India was 13%.

There are many speculated reasons why India is experiencing such a high denial rate. Many critics of the L-1B visa allege that Indian IT companies transfer employers to different offices in the United States in order to turn a larger profit in its company. This could mean that a qualified United States worker who could do the work of the Indian employee working in the United States is replaced any an Indian national in the United States on an L-1B visa.

However, many speculate that the lack of guidance on the meaning of “specialized knowledge” leads to denials because it is not clear what an applicant should highlight in his application to be considered for an L-1B visa. The new guidelines for L-1B visa clarifications will hopefully offer much needed insight and lead to more approvals.

New guidance on “specialized knowledge” released by USCIS expected to take effect in August USCIS released a Policy Memorandum this week that gives more insight into the meaning of specialized knowledge needed for L-1B approval. This memorandum will accept feedback until May 8, 2015 and is expected to go into effect on August 31 of this year if the USCIS does not further modify the guidelines. In the memo “special knowledge” is defined as knowledge of the “employer’s product, service, research, equipment, techniques, management, or other interests and its applications in international markets that is demonstrably distinct or uncommon in comparison to that generally found in the particular industry.” The USCIS also provides an alternative definition of advanced knowledge, which relates to expertise in the employer’s processes and procedures more advanced than generally found within the organization.

To breakdown this lengthy definition, the USCIS gives some examples of specialized knowledge. Some of those examples are:

1. The employee can contribute to the United States operation of foreign operations and his knowledge is not generally found in the United States office. experience with that employer.

2. Specialized knowledge can generally only be acquired through past

3. Knowledge of a process or product that is complex or high technical.

4. Employee has been employed abroad and conducted assignments that enhance the company’s productivity, competitiveness or image.

The new clarification in the L-1B nonimmigrant visa will take place in August at the earliest. Hopefully the further clarification into the meaning of “specialized knowledge” will guide employers through the immigration process and lead to more approvals in the following years.

Contact the Law Office of Sweta Khandelwal to discuss filing L-1B nonimmigrant visas in accordance with the new guidelines.

Cited Sources:

In boost to Indian companies, US to ease L-1B visas, March 25, 2015, Chidanand Rajghatta

Policy Memorandum, L-1B Adjudications Policy, March 24, 2015, USCIS

L-1 Denial Rates Increase Again for High Skill Foreign Nationals, March 2015, National Foundation for American Policy

L-1 Visa Alarm for Indian IT,March 26, 2015, Indian American Times


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Employment Authorization for H-4 dependent spouses available in May.

woman-1134419-m-1Currently dependent spouses on H-4 visas cannot lawfully seek employment in the United States, but that will be changing soon! The USCIS has officially announced that certain H-4 dependent spouses of H-1B visa holders may seek employment in the United States starting May 26, 2015.

Those eligible are H-4 dependent spouses of H-1B holders who are the principal beneficiary on an approved I-140 or the H-4 dependent spouses who have been granted H-1B status under section 106(a) and (b) of the American Competiveness in the Twenty-fist Century Act of 2000 (amended by the 21st Century Department of Justice Appropriations Authorizations Act).

The Department of Homeland Security predicts as many as 179,600 H-4 dependent spouses may be eligible for employment authorization during the first year of the implementation. Each year after, the number of H-4 applicants expected to apply for employment authorization drops to 55,000.

The Department of Homeland Security reported on public comments it received about the new H-4 EAD status. Of the comments received about 85% of the comments were in support of the extension of EAD to H-4 dependent spouses. Additionally, more than 60 commentators stated that because of the change in H-4 employment authorization they canceled plans to leave the United States and will now stay and continue to pursue Legal Permanent Residence.

H-1B holders cancelling plans to leave the United States because dependent spouses can seek work illustrates the significance of this change. An additional income and an option for both spouses to pursue a career track can have a big impact on families. With significant public support for the addition of H-4 EAD’s it is evident that many families are eager for this change and it seems likely that many families will utilize the ability to bring in an additional source of income.

India, a country that utilizes a significant portion of H-1B visas will significantly benefit from the addition of H-4 EADs. In 2012, of the 262,569 H-1B beneficiaries, 168,367 of the beneficiaries were from India. Considering that many H-1B holders move to the United States with their families, Indian families will greatly feel the impact of this announced change, while benefiting the United States economy as well. Many highly skilled employees come to the United States from India each year and allowing dependent spouses to work may bring even more skilled workers into the United States and retain the skilled workers that are already in the United States.

After May 26th, dependent spouses can apply for employment authorization and, if approved, will receive an EAD card. The EAD card allows the spouses to work legally in the United States. Additional paper work and filing fees must be sent to the USCIS to apply for employment authorization.

To apply for employment authorization on an approved H-4 or to discuss any other immigration needs contact the Law Office of Sweta Khandelwal. Attorney Sweta Khandelwal is an experienced immigration attorney in the Silicon Valley area.

Cited Sources:

Characteristics of H1B Specialty Occupation Workers, Fiscal Year 2012 Annual Report to Congress, October 1, 2011- September 30, 2012, U.S. Department of Homeland Security

Employment Authorization for Certain H-4 Dependent Spouses, February 15, 2015, Department of Homeland Security

DHS Extends Eligibility for Employment Authorization to Certain H-4 Dependent Spouses of H-1B Nonimmigrants Seeking Employment-Based Lawful Permanent Residence, January 24, 2015, USCIS


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Need for H-1B Visas- The Time to Apply Is Now!

As H-1B season approaches, it’s time to begin your application process for a spot in the lottery. Currently, the USCIS allots 65,000 H-1B visas each year. Vying for a spot in the lottery are an estimated 195,000 applicants. With three times the amount of applicants than visas available, many applicants will be unable to get H-1B status due to sheer lack of numbers.

The Obama administration has attempted to combatimmigration reform but these attempts have not survived in Congress. One bill called the Immigration Innovation Act proposes to increase the amount of H-1B issued from 65,000 to 115,000. The bill also proposes a removal of the 20,000 Cap on applicants with U.S. Master’s degree.

These proposed changes to increase the amount of H-1B visas available would allow more foreign employees to work in the United States.With more H-1B visas issued each year, employers will increase their odds of getting an H-1B and can better plan and prepare for their business’ hiring needs

The technology sector is one of the biggest users of the H-1B Visa. The United States is experiencing a shortage of workers in the Science, Technology, Engineering and Math fields. By increasing the no. of H-1B Visas, we are promoting growth of business’, particularly in high-tech. This could also lead to more job creation in the United States due to foreign workers bolstering new companies with their specialized skill set.

Unfortunately the proposed increases will not be in place this year. With a significantly higher number of H-1B applicants than H-1B visas available, employers can no longer depend on the H-1B program to fill these skilled positions. Employers may have to explore other visa options if their applicants are not chosen in the lottery in order to fulfill employment needs andavoid waitinganother year to try again. Again, the need to hire H-1B workers arise from the fact that United States is experiencing a shortfall of workers in the skilled positions that are filled by H-1B workers.

With a small amount of H-1B visas available the importance of filing on time is crucial. Like last year, the Cap will likely be filled in the first week. Thus, for a chance to be considered in the H-1B lottery, timely filing is extremely important. It’s critical that your application be filled correctly and accurately in order to prevent rejection. If petitions are not selected, or rejected because they are erroneously filed, employers/foreign nationals mustwait for another year before they can apply again. This is where an immigration attorney can be extremely valuable to ensure your application is filed timely and accurately.

The Law Office of Sweta Khandelwal is prepared to help you with all your H-1B filings this year. Contact our offices now to ensure you have time to gather any documentation before the Cap opens next month. Attorney Sweta Khandelwal can also speak with you about other visa options in the event your visa applicants are not chosen for the Cap this year.

Cited Sources:

AILA: Immigration Innovation Act Would Help Economy, January 14, 2015, AILA




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