ARTICLES - Immigration
Your L-1 Visa Petition: Preventing and Surviving the Request For Evidence (or Notice of Intent to Deny)
May 2013 - By Shahzad Ahmed
Many foreign businesspersons have experienced the anxiety and frustration that occurs after filing an L-1 visa petition. Upon filing the petition, the USCIS issues a lengthy Request for Evidence (RFE) or a Notice of Intent to Deny (NOID). What are the common issues that cause a RFE or NOID? How can this be prevented and if the government does issue a RFE or a NOID, then how can you overcome it? First, let us briefly review some background of the L-1, and then dissect its legal requirements and its evidentiary criteria.
What is an L-1 Visa?
The L-1 Visa is one of the most common non-immigrant work-related visas. The L-1 Visa is available for an alien who has been employed by a foreign business in the capacity of an executive, manager or of specialized knowledge, and who seeks to be transferred to the entity's U.S. office. The employee must have worked for the foreign business in one of these capacities for at least one year out of the last 3 years preceding the filing of the petition. The U.S. entity must be either the parent company, subsidiary, branch, affiliate or joint venture partner of the foreign company but does not have to engage in the same line of business as the foreign company (L-1B).
Common Issues that Arise
Although at times the USCIS does issue unnecessary requests for information, it is my observation that many applicants, and even their counsels, fail to address the main requirements of the L-1 in their applications. As a result, the USCIS issues lengthy RFE's or NOID's. Notably, it is the petitioner's burden to prove eligibility for the L-1. So here are some common issues raised and how I recommend preparing for them.
The Executive/Managerial role
In order to be classified in the coveted role of an Executive, the regulations require that the employee must perform primarily the following duties:
- Direct the management of the organization or a major component or function of the organization
- Establish the goals and policies of the organization, component, or function
- Exercise wide latitude in discretionary decision-making
- Receive only general supervision or direction ... (8 CFR 214.2(l)(1)(ii)(C))
have seen cases where the petitioners or their counsels have filed the petition with a vague description of the duties, causing instant RFE's and NOID's about whether the employee will truly perform executive duties or is instead simply hiding behind the title of a "CEO." So the lesson we learn is: specificity. It is important to describe in detail the specific duties that will be performed and those duties must be primarily executive in nature.
Now let us examine the position of a manager. In order to be classified in the role of a manager, the following primary duties are required:
- Manage the organization, or a department, ...
- Supervise and control the work of other supervisory, professional, or managerial employees, or manages an essential function ...
- Have the authority to hire and fire ...
- Exercise discretion over the day-to-day operations of the activity or function for which the employee has authority ....(8 CFR 214.2(l)(1)(ii)(B))
Once again, petitioners can save themselves a lot of problems, by providing a detailed description of the duties. A conclusory statement that the employee will be a "Manager" will not be enough. Be specific in your explanations.
A petition for an employee of specialized knowledge requires as follows:
Special knowledge possessed by an individual of the petitioning organization's product, service, research, equipment, techniques, management, or other interests and its application in international markets, or an advanced level of knowledge or expertise in the organization's processes and procedures. (8 CFR 214.2(l)(1)(ii)(D))
In order to prove that the employee will work in a position of specialized knowledge, the petitioner must submit documentary evidence and explain the type of specialized knowledge possessed in the employer's letter.
One year employment abroad
Upon establishing the role to be performed by the employee, it is necessary to prove his or her qualifications abroad. One of the most common concerns raised in a RFE is the lack of evidence of the employee's position abroad. The regulations require that the employee must have been employed by the foreign company for at least one year prior to the filing of the petition as an executive, manager or employee of specialized knowledge. With such evidence, the petitioner can usually prevent or address concerns about the employment abroad.
The activity of the foreign company
And it follows that with proving the employment abroad, one must also establish that the foreign company is actively engaged in business. Thus the petitioner must submit records documenting the business ownership and control. This type of documentation may satisfy the examining officer that the foreign company is actively trading.
The qualifying relationship between the companies
In addition to having a foreign active business, there must exist a qualifying relationship between the foreign entity and the U.S. entity. The U.S. company may be either a "parent," "branch," "affiliate" or "subsidiary" of the foreign entity. These terms have specific meanings in the regulations.
Without getting into the definitions of these terms of art, suffice it to say that the preparer of the petition must provide the legal documentation showing that one of these qualifying relationships exists between the two entities.
The Lessons Learned
Many petitioners and their counsels have learned the hard way that USCIS is scrutinizing the L-1 petitions. In order to prevent or overcome a RFE or NOID, it is necessary to present the proper evidence tailored to the specific requirements of the L-1 regulations. And the petitioner is highly advised to hire experienced counsel who has ample experience in dealing with L-1's. Doing so will maximize your chances of a successful L-1 petition.
Works Cited: Code of Federal Regulations
8 CFR 214.2(l)(1)(ii)(C)
8 CFR 214.2(l)(1)(ii)(B)
8 CFR 214.2(l)(1)(ii)(D)