New State Department Data Show L-1 Visas in India Declined Significantly in 2011

The number of L-1 visas issued at U.S. posts in India declined by 28 percent from 2010 to 2011, according to data obtained from the U.S. Department of State. The release of the L-1 visa data makes it difficult for U.S. government officials to argue that nothing different is going on in India when compared with the rest of the world. That is because at the same time L-1 visas declined in India, the number of L-1 visas issued went up by 15 percent at U.S. posts in the rest of the world.

The official data from the State Department show that L-1 visa approvals went from 35,896 in Fiscal Year (FY) 2010 to 25,898 in India in FY 2011, a drop of approximately 10,000 visas. During the same time period, L-1 visas issued in the rest of the world rose by 15 percent (from 38,823 in FY 2010 to 44,820 in FY 2011), according to State Department data. (FY 2011 data are considered preliminary by the State Department but any changes in the final data are typically minor, according to a State Department official.)

Increased denials of L-1 visas when attempting to transfer personnel into the United States from India on L-1 visas is having a negative impact on growth, projects and product development in the United States, according to companies. As explained in an earlier column, when companies use L-1 visas they are transferring into the United States individuals who already are employed by the companies in another country. It’s unclear why some believe moving an employee from one location to another would mean a job loss for a U.S. worker, as some allege. (Sometimes a source of controversy is a situation when a consulting company’s contract ends and a new company receives that contract.)

L-1 visas allow U.S. companies to transfer executives, managers and personnel with specialized knowledge from their overseas operations into the United States to work. To qualify, L-1 beneficiaries must have worked abroad for the employer for at least one continuous year (within a three-year period) prior to a petition being filed. Also, based on U.S. Citizenship and Immigration Services regulations, an executive or manager is limited to seven years, while an individual with specialized knowledge can stay for five years.

The L-1 visa data were requested after the U.S. Embassy in New Delhi issued a press release on October 25, 2011, headlined, “U.S. Mission to India Reports 24% Year-on-Year Increase in H-1B Visas Issued.” However, that press release contained no information on whether L-1 visas had increased or decreased in the past year, which prompted the inquiry to the State Department.

In response to a question for the reason for the decline in L-1 visa issuance, a spokesperson for the Bureau of Consular Affairs replied in writing, “On the question about decline, we have heard concerns from some companies that they are experiencing high refusal rates.  We have seen an uptick in unqualified applicants in this category due to a much broader use of complex ‘specialized knowledge’ provisions as the basis of L-1 application, which may account for the perception of increased refusals.  We work proactively with companies and business associations to ensure that we explain the requirements for this visa in complete detail.”

Since all U.S. consulates and embassies operate under the same laws and regulations, the data raise legitimate questions about what is happening to U.S. company applications to transfer important personnel into the United States from India. “There has been no change in the qualifications of applicants at Indian or any other posts.  Nor has there been any change in the rules and regulations governing eligibility for L-1 visas,” said Crystal Williams, executive director, American Immigration Lawyers Association, in a statement. “Instead, there has been an attitudinal change in adjudications. Recent adjudications have ignored the flexible statute enacted by Congress that was meant to accommodate the increased globalization of the economy, facilitate the ability of businesses to bring employees with needed skills into the United States and to operate competitively in the United States and across the globe.”

The State Department has suggested that since the U.S. issues a lot of visas in general in India and Indians receives a large percentage of the L-1 visas issued each year that means there is nothing wrong with the L-1 visa approval process at U.S. posts in India. That line of argument is questionable. The fact that India has a large population and a growing pool of skilled professionals tells us nothing about whether individual visa cases are decided properly.

A decline of 28 percent in L-1 visas issued in India from 2010 to 2011, at the same time that employers have seen an increase of 15 percent in L-1 visas issued in the rest of the world, using the same law and regulations, indicates something is amiss.