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The draft guidelines on the US L-1 visas have little cheer for the Indian software sector.
According to Nasscom, a trade association of the information technology sector, the guidelines are unlikely to reduce the rejection rates in this category of work visas. The rate is around 40 to 50 per cent. Indian software companies often seek L-1 visas to send employees with specialised knowledge to the US. The purpose of the guidelines is to define what "specialised knowledge" constitutes.
The US government has been seeking stakeholder comments on the guidance released earlier this year.
"Going through the text in the guidance it does not gives you a feeling that it will guarantee better acceptance rate of the visa category that has seen very high rejection rates. The same rules can be used to deny or give visas. But I would not reject it outright. There are certain sections where we have said that much more improvement is needed, but there are some other positives mentioned as well," said Gagan Sabharwal, director, Nasscom.
In a written response to the US Citizenship and Immigration Services, the industry body has highlighted some key concerns with the guidance.
While the memo has not objectively defined specialised knowledge, it has given visa officers the power to ask for details of peer group salary in order to decide whether the applicant really possesses specialised knowledge. The visa officers could also ask for details of how many employees of the same profile in the company are already posted in the US.
Sabharwal argues asking for payroll details of peer employees onsite could lead to a breach of client confidentiality clauses and privacy of co-workers. "While the guidance clearly acknowledges the current laws of the US do not mandate details of salary level on L-1 category but in some other section, the guidance says in a way, salary is one of the important factors to ascertain whether the person is specialised or not, says Sabharwal adding that the guidance is ambiguous on this.
There is a section in the guidance that mandates visa officers adjudicating applications to ascertain how many such employees are already present in the US, is another concern area. Sabharwal says a company with large employee base may argue for many more specialists to be in the US even with lower overall workforce percentage. On the other hand, guidance acknowledges that in a small company, everyone can be a specialist. "What we are saying is that it is not the responsibility of the visa officer to ascertain how many employees of an organisation can go onsite. Their job is to ascertain if the petitioner has specialised knowledge or not" added Sabharwal.
In March, the National Foundation For American published a report titled 'L-1 Denial Rates Increase Again For High Skill Foreign Nationals', which said Indian nationals face the highest refusal rates in the L-1B visa programme at 56 per cent. The denial rate for nationals of Canada, Britain and China were at four per cent, 16 per cent and 22 per cent, respectively.
Sabharwal also pointed out that a positive is the fact that the visa officers will use principle of preponderance of evidence. What it means that petitioning organisation will provide evidence to what it believes is 'more likely the case than not' rather than being asked to provide "clear and convincing evidence" or the "beyond a reasonable doubt" standard,which is a positive." The feedback process for the L-1 guidance ended earlier in May and the memo is expected to be effective from end of August.
