Over the past decade, the likelihood that USCIS will issue a Request for Evidence (RFE) in connection with an L-1 visa petition has skyrocketed. In particular, the rate at which such requests are issued in response to L-1B petitions has climbed to approximately 45%. This increase indicates more than just an inconvenience for the individuals seeking L-1 visas and their employers: the denial rate for L-1B visas climbed from 6% in 2006 to 35% in 2014 and there was also an increase in denials for L-1A visas. More than half of L-1B applications wherein the employee’s country of origin is India are denied.
Specificity in L-1 Visa Petitions
While there are clearly other factors impacting the rate at which L-1 visa petitions are met with RFEs, there is one area over which petitioners and their attorneys have a great deal of control—the specificity of their applications. In short, each of the elements required for issuance of an L-1 visa must be demonstrated clearly.
While that may sound obvious, individuals or companies attempting to assemble application information on their own or attorneys without a strong background in immigration law may not be aware of the type of documentation required to establish each element in a manner that will satisfy USCIS.
Formatting an Effective Response to a Request for Evidence
The information provided in response to an RFE is (of course) all important. But, presentation counts too. Inconveniencing the adjudicator is obviously not in your best interest. USCIS sets forth the following specifics regarding the packaging and presentation of your RFE response:
- Index the evidence and provide corresponding tabs.
- Make sure copies submitted are clear and legible.
- Include duplicates if you are requesting consulate notification.
- Include a full English translation of any submitted evidence that contains foreign language text, including certification that the translation is complete and accurate and that the translator is competent to translate from the original language into English.
Providing Documentation in Response to an RFE
If an RFE is received, the request may contain suggested documents for submission. You and your immigration attorney will have to determine whether those documents constitute the most effective additional information to provide. You will also have the option of providing alternative documentation, explaining why the existing documentation provides sufficient support, or requesting a determination based on the existing file.
Since the receipt of an RFE suggests that the adjudicator feels there is not, or may not be, sufficient documentation for approval, the latter two alternatives will be risky in many cases. The ultimate goal isn’t to provide evidence that you feel is sufficient, but evidence that will lead to approval of the application.
L-1 RFE Pitfalls
There are many reasons that an RFE might be issued in connection with an L-1 visa filing, and often an RFE will request additional support for more than one element of the application. Below are just a few of the areas in which documentation may be deemed to be lacking in the initial application and some examples of appropriate supporting evidence.
Qualifying Organizations Doing Business
The L-1 visa is intended for employees transferring within a “qualifying organization.” In short, the destination employer must be a branch of the same employer that employed the worker in the foreign country, or a parent company, affiliate or subsidiary. The organization must also be doing business as an employer in both the United States and at least one foreign country during the entire period of the employee’s stay in the United States as an intracompany transferee.
Simply stating the relationship and that the company will be active during the appropriate time period is not sufficient. USCIS advises that the qualifying relationship must be demonstrated through evidence of ownership and control of both entities. To learn more about
Examples of Appropriate Documentation
Some examples of appropriate supporting documentation include the most recently filed SEC Form 10-K, similar annual filings of the foreign employer, complete copies of the U.S. entities most recent tax returns, and the foreign entity’s share certificates issued up to the date of filing. These are just a few examples of the type of documentation USCIS will be looking for if this element isn’t sufficiently supported in the initial application. An immigration attorney experienced in L-1 visa applications and RFEs can assist you in determining the most appropriate documentation and ensuring that it is submitted properly.
Some of the same information submitted to establish ownership and control may also demonstrate that both the U.S. and foreign entity are actively “doing business”. Other types of documentation may suffice, or may be required in addition, such as annual reports, purchase orders, licensing agreements and customs records.
Executive, Managerial or Specialized Knowledge Capacity
The days of rubber stamping a mere statement that an employee’s role qualifies or that he or she has specialized knowledge are gone. However, too many applicants include a brief statement or vague description of duties when submitting the initial application. Some information that USCIS suggests providing to prove this element for managers and executives include:
- A specific description of duties for executives and managers, perhaps including a breakdown of time allocated to each.
- Copies of documentation of employee’s supervisory role in the foreign entity, such as performance reviews written by the employee.
Regarding specialized knowledge employees, USCIS would like to see detailed information such as:
- The specific products, processes, tools, equipment or other that require specialized knowledge held by the employee.
- An explanation as to how the knowledge in question is specialized.
- Information regarding the time, training and on the job experience required to obtain such knowledge.
While these are two areas in which initial applications often fall short, there are many additional types of documentation that may be required to successfully obtain an L-1 visa. Whether in the initial application or in response to an RFE, always err on the side of completeness.
For example, a letter from Human Resources describing the applicant’s employment with the foreign entity may suffice to establish that he or she has been employed by that entity for one year, but why not include pay records as well, to make the application as thorough as possible and potentially avoid an RFE?
Contact KPPB Law For Professional Legal Assistance
Getting experienced help putting together a strong application or response to an RFE will be the most powerful strategy available to you. If you or your employee is in need of assistance with responding to an L1 visa RFE, contact KPPB Law today by phone or by sending a message online to schedule an initial consultation.
Beeraj Patel, Esq.
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