PART ONE:
Frequently Asked Questions/ Answers about Request For Evidences (RFE) for EB1-EA, EB1-OR, and NIW
Q: What
is the the Request For Evidence?
A: When your immigrant petition has been poorly documented. Your may get a notice of the USCIS' unfavorable decision, a written statement of the reason for the negative outcome and an explanation of how to appeal.
As an alternative, the USCIS may request for additional information or called Request For Evidence (RFE), by sending you a form I-797 and a list of information and documents it needs to determine your eligibility. You must respond to such a request within the specified time period, usually about
one month, or your I-140 petition will be decided on the basis of the already submitted documents.
Q: Why does USCIS issues
RFE?
A: USCIS adjudication officer uses RFEs to request additional information on the pending application under any of the following circumstances:
1) Something is not clear in a case that you have
filed;
2) If there is a document missing;
3) the officer needs updated information on your case;
4) the RFE notice was issued by mistake or in error;
5) the RFE letter was issued for any other reasons the adjudication officer likes.
Q: Does an RFE mean that USCIS is about to deny my case?
Can I simply ignore the RFE request?
A: Normally USCIS will not deny
your case, but it can indicate that they aren't sure about the case. But no one likes to receive a RFE notice on the pending case.
You can ignore the RFE request
only if you really want your case to be denied.
Q: How long does the USCIS officer make the decision after receiving the RFE response?
A: It really depends. It is difficult to tell.
Some cases may receive the approval notices in a couple of days after submitting the RFE responses.
For some other cases, USCIS officer may make the decision in several months. The important issue is the successful result, not the time period you have to wait for.
Q: What should I do if I think the RFE notice contains "ridiculous"
or "stupid" requests?
A: It did happen or exist. But no matter what is in the
RFE notice, you must treat the request seriously and politely respond to the requests in details. Some applicants
learned a lesson by putting some strong words in the response letter that could ridicule or humiliate the officer.
Q: Is RFE the same thing as
NID (Notice of Intent to Deny)?
A: No, they are two different
kind of notices but closely related. If the USCIS adjudication officer has already pretty much decided (made his/her mind) on your pending application not in favor of your, they normally send you an
NID (Notice of Intent to Deny) instead of an RFE. This is basically a last-chance opportunity to fix your case and convince them that they should not deny it.
Q: Can my
I-140 petition still be approved after the RFE response?
A: Usually, an Request For Evidence is
issued when additional evidence is required. An USCIS adjudicating officer could issue a Request for Evidence pertaining to
the alien applicant's eligibility. The issuance of a RFE can have a significant impact on the outcome of an I-140 application case. Historically, cases were never denied without an RFE and a chance to respond to any perceived deficiencies.
When a letter of Request For Evidence is sent out, the petitioner has certain time to respond. Responses to an RFE usually rely on legal arguments to a great extent, in addition to new documentary evidence to satisfy the examiner's requests. Many approved I-140 cases start with a
RFE.
Many cases would receive RFEs, and after submission of additional legal argument, explanation,
and evidence, the cases would often be approved. The USCIS is exploring an avenue to reduce the time it takes to process cases and to reduce its case backlogs. When USCIS examiners issue RFEs, it is time-consuming, expensive, and slows the entire adjudications process.
Q: How
could I avoid the a Request For Evidence
notice from USCIS for my petition?
A: In practical, USCIS' decisions remain consistent over the past
years, and stick clearly to the statute and regulations. In general, USCIS Service Centers are scrutinizing cases carefully. Specifically, there have been Request For Evidences in practice regarding the alien beneficiary's
eligibility; contributions in a field; position description and capacity;
publications and citations. However, most RFEs are firmly grounded in the statute and regulations. Therefore, it is very important to carefully present the
alien beneficiary's eligibility, and presenting a strong petition for the USCIS Service Center to approve.
The best way to avoid the a Request For Evidence
is to get your case prepared and filed properly before your case is submitted to USCIS.
Q: What are an
USCIS examiner's choices after reviewing an employment-based Green Card
petition?
A: For employment-based immigration, the burden of proving eligibility for the benefit sought remains entirely on the petitioner, and the petitioner has to meet the burden. When your petition has been poorly documented, you may get a notice of the USCIS' unfavorable decision, a written statement of the reason for the negative outcome.
When you file an employment-based Green Card application, the USCIS examiners have three choices:
1) approve the application; 2) deny the application; or 3) request for additional evidence.
Q: What
I should do after receiving the RFE?
A: When your EB1 or NIW petition can not be immediately adjudicated, a request for additional evidence will be sent to you from a USCIS Service Center. During the response time period, you may:
1) submit all of the requested evidence; 2) submit some or none of the requested evidence and ask for a decision based upon the record; or
3) withdraw the petition.
Q: How much time do I have to respond to an RFE?
Can I
ask for extension of the RFE response time?
A: It depends on each case. Usually from 30 days to 90 days. The RFE notices should tell you how long you have.
No extension of the response time is possible.
Also, no interim benefits will be granted during the time waiting for additional evidence to be submitted. If a response is not received within the time limit, the case will be considered abandoned and
denied, and the denial may not be appealed.
Q: What else I
need to know for the RFE response?
A: It is extremely important that the
RFE letter requesting evidence be returned with the evidence and that the special mailing envelope provided be used. Failure to do so will delay processing of the case and may result in a denial due to abandonment.
Evidence submitted without the letter and/or proper return mailing envelope will be difficult to match up with the pending case, and may be treated as general correspondence.
Q: Why USCIS asked my past record of
achievement in the RFE notice of NIW application?
A: The USCIS believes that an alien applicant’s past record of national impact in
a field justified expectations of future accomplishments. The past record can
indicate if the applicant’s work already had a demonstrated national impact in
his or her native country. This past record of applicant’s initiative and dedication to
his/her work can help USCIS adjudicators to decide if the applicant will continue to provide major contributions in
the field in United States.
Q: Is the NIW application more difficult
than before with the NYSDOT case as precedent?
A: While the immigration officers has changed direction in its
adjudications after NYSDOT case, the NIWs are still possible for individuals who play critical roles at their companies and have a proven track record of achievement, showing that they are significantly better in their field than their U.S. citizen counterparts.
The NYSDOT case will stop frivolous NIW cases from being filed. But truly deserving cases, such as engineers working on important technologies and medical professionals doing cutting-edge research, should still be able to obtain
NIW approval.
Q: What is the role of independent letters of
recommendations in the NIW RFE process?
A: Independent letters of recommendations are more important in addressing the
issues raised under NYSDOT for NIW, particularly if they are not well articulated in the petition
cover letter. A successful outcome can be assured with a well prepared RFE
response cover letter, backed by few quality oriented independent letters and copies of relevant evidences.
The references should be well established senior researchers in the fields with high reputation. Only the comments from the independent and highly reputed references are valuable and convincing to the USCIS officers.
Q: My concurrent I-140/I-485
application was denied after RFE response. Without a valid H1 nonimmigrant status,
can I refile I-140/I-485 application?
A: Currently, unless I-140 is first approved, the I-485 applicant is unable to change employment
even after 180 days of I-485 filing. The denial of I-140 can block out the aliens who are not in a valid nonimmigrant status from reattempting to file the
concurrent I-140/I-485 green card application second time. Therefore, it is extremely important that the H-1B professionals maintain H-1B nonimmigrant status rather than sitting on
EAD/AP status.
Q: For RFE response of my EB1-EA
petition, can I use employer's internal newsletter as "published materials about the
alien beneficiary"?
A: The ten criteria of EB1-EA petition include published materials about the foreign national in professional
or major trade publications or other major media relating to the foreign national's work in the field. For this category, any published material must be primarily about the beneficiary and be printed in professional or major trade publications or other major media with national or international distribution.
Therefore, the employer internal newsletter may not be an appropriate type of
media as "published materials about the foreign national in professional
or major trade publications".
Q: I received the
RFE for my EB1-OR petition, the USCIS said that "academic
degrees are not prizes or awards to satisfy EA1 standard." What do you
think?
A: One of the criterion of EB1-OR
petition is receipt of nationally or internationally-recognized prizes or awards for excellence in the field of endeavor. The
academic degrees do not belong to the prize or award category. USCIS stated that degrees are not prizes and that university study is not a field of endeavor. It is a training for future employment in the field of endeavor.
Q: After long waiting, a
RFE from USCIS I received stating that submitted evidence does not establish that the beneficiary qualifies for
EB1-EA classification. The main problem they found was with recommendation letters. They post
such requirement “Is beneficiary considered to be at the same level as the authors of the letters of recommendation?”
What should I do?
A: Letters of recommendation are important, but not sufficient for
EB1-EA petition. You must provide convincing evidences, but not simply in a CV format. You can overcome the RFE by demonstrating the importance of your research, journal papers, citations, patents, etc. You can also ask the referees to write
additional letters stating that you are indeed one of the top people in your field.
Q: I need additional
recommendation letters for my RFE response. Some people said that these kind of
letters should be written by experts themselves based on what they think about
the applicants. Do you think that an applicant writing drafts and getting it signed
by recommenders is unethical?
A: For EB1 and NIW immigrant categories,
reference letters can only be supplemental evidence to documented accomplishments.
Reference letters on their own do not carry much weight. The letters for immigration purposes have different requirements from normal recommendation letters for job applications. Recommenders need to be informed of this so they can write appropriate letters.
This is also why we provide template
of reference letters - not so one can copy verbatim, but so one can get a general idea of what is required.
An alien applicant cannot fake credentials or achievements, since they have to be physically documented in the form of papers, citations and prizes.
No one can pretend to be a Nobel laureate in the reference letters or RFE
response cover letter, and not have supporting documents.
Q: If I get a Request
For Evidence (RFE) from USCIS for my I-140 application, does it mean that my
application may very likely be rejected?
A: If your get a RFE notice from USCIS,
it is still very hard to predict the final result of your I-140 petition, and it
depends on the nature of the USCIS request. For each case, the situation is
quite different. In general, with a very careful and complete response to the RFE, a
lot of petitions are eventually got approved, but some petitions do get
rejected.
Q: I got a
Request for Evidence (RFE) for my I-140 application, does it mean my application
is incomplete?
A: If only the original filing was
incomplete, such as missing payment fee or missing an form, you will not get
Request for Evidence (RFE), the USCIS would let you know at the beginning. The RFE means that further evidence
is required for your pending application, for the USCIS to decide approval or
rejection of your application. The RFE does not change the pending status of the
underlying application of I-140.
Q: I plan to prepare my
RFE documents. I am a self-petitioner in NIW. My RFE replying documents may be as many as 450 pages,
because of several new project reports. Is it a good idea to send big size RFE responding documents?
A: It may not be good idea to send big size
documents for RFE replying. The applicant needs to make the size reasonable, but
it also depends on how the materials are organized. The well organized documents are not difficult
for the USCIS officers to handle.
We all know that EB1 and NIW
petitions are not easy to prepare the documents comparing with other immigration
applications. Someone who won a Nobel Prize or was an internationally
recognized authority could probably get by with a relatively short submission,
most cases would take a more substantial submission. But the applicants also need to remember that quality is
much more important than quantity for EB1 and NIW documents.
Q: I got a RFE for my EB1-EA petition, it asked me to provide "Evidence
of the beneficiary's original scientific contributions
of major significance in the field". Can you give me more
explanation for this question?
A:
For EB1-EA petition, if the USCIS adjudicators are not clear about your contribution
in your field, you may get RFE question to provide "Evidence of the
beneficiary's original scientific, scholarly, artistic, athletic, or
business-related contributions of major significance in the field."
It is not sufficient for the petitioner in EB1-Extraordinary Ability category
simply to contribute to the field. USCIS adjudicators will consider whether your work
has led to major contribution in the field. They may also consider whether the your work
results has been used as a guideline or by others in the field.
Q: The RFE letter
from USCIS for my EB1-OR application asked the question of "outstanding
achievement requirement" for my membership of IEEE. Do I have to be a senior member of
IEEE to prove my outstanding achievement?
A: USCIS has been challenging the type of
membership for long time. Some memberships require outstanding achievements, but
not all memberships. For example, you do not have to be elected
as a fellow of your professional association to meet this criteria. An associate or senior member of
IEEE can still demonstrate the outstanding achievement in some degree.
Generally, the IEEE membership is acceptable for USCIS, but this is the area that may require more explanations in the
response to the RFE.
Q: I filed NIW
application and then got a RFE letter asking for independent letters of
recommendations:
"Please demonstrate how your achievements are more significant/noteworthy than others in the field and are above that normally attained by somebody at your current level. To establish this you should submit letters from independent witnesses who have not worked with you but are familiar with your impact on the
field",
I want to know what is USCIS looking for in this case?
A: Clearly as the RFE question, the RFE in your case was quite specific as to what
USCIS wanted: an independent letters of recommendations. Independent letters of recommendations
are more important in addressing the issues raised under NYSDOT for NIW, particularly if they are not well articulated in the petition statement. A well prepared
responding statement backed by few quality oriented independent letters and copies of relevant
evidences may win the RFE case. However, for EB1-EA petition, even
with independent letters, you still need to meet the 3 or more evidentiary standards specifically requested in the regulations.
Q: I received
a RFE for my EB1-EA application, it asked me to provide the evidence of international
recognition. Would "judgment of the work of others" be evidence of international recognition?
How about sitting in a thesis committee? Does this qualify under this category?
A: The "judgment of the work of others" can
include many issues, such as supervision and training of junior staff. But the
judgment of the work of others may not be evidence of international recognition.
It is reasonable that a chemistry professor is expected to supervise students of chemistry as
a part of his professorial duties. Therefore, serving on a thesis committee or supervising junior staff is not sufficient in meeting this
criteria of the evidence of international recognition.
USCIS always gives emphasis on the comments of experts, since it is impossible to understand the applicant's qualifications by the examiner without such comments.
Only judgment of the work of others or published papers do not guarantee the international
recognition. However, the applicant may provide several combined evidences as
the indication of international recognition.
Q: In my EB1-OR
petition, I provided my published papers. Now, a RFE notice asked me for the
citation information in published materials or in major media. How
could the USCIS ask this question?
A: The citations can be counted towards meeting the criteria relating to published materials in major media about the petitioner.
USCIS now emphasizes that citations could demonstrate academic honesty and the reactions of other experts to the petitioner articles. It is therefore counted as part of authorship of scholarly articles and
achievements.
Q: I filed a concurrent
I-140/I-485 application in National Interest Waiver several months ago. Now, I
get a RFE letter for my I-140 application, asking for more supporting materials
and evidences. Please let me now what will happen for my I-485 application if my
I-140 is rejected after the RFE?
A: The concurrent
I-140/I-485 filing is supposed to permit the applicant a number of benefits,
including availability of work permit card, advance parole for international
travel, and similar benefits to the accompanying family members.
Under the law, the I-485
petition remains intact unless it is denied as separate from the denial of I-140. To
prevent the abuse of concurrent I-140/I-485 filing, the USCIS instructed
the service centers to deny all the accompanying applications including I-485, I-765, and I-131 simultaneously when the service centers deny the
underlying I-140 application.
Q: Recently, I replied to the RFE questions for my EB1-EA petition. Now I called
the service center and found out that the petition is under "supervisory review".
What is the "supervisory review"? does it mean a denial?
A: It may or may not lead to a denial, it may go to a supervisor prior to a denial being
issued. It goes to a supervisor when the officer is not sure of what to do. The
case officer wants to a denial going to supervisors first. On the other hand, the supervisor may instruct the officer to approve the
case.
Q: My self-petitioned Outstanding
Researcher I-140 was approved and I filed I-485 three months ago. Now I changed my job with a new H1B
in exact same field. Are there any risks down the road for I-485 if my former
employer is willing to cooperate with any RFE?
A: The EB1-OR I-140 petition is employer
sponsored and it is not portable (this is different from EB1-EA and NIW). The
USCIS adjudicator may regard a change of employer as invalidating the original
EB1-OR approval.
According to USCIS rule and AC-21, an I-485 applicant may change jobs after
180 days of I-485 approval. But in your case, you do not meet the criteria.
It may be possible that the USCIS
will ask you
to file a new I-140 (It depends on the individual officer).
Also, you should not take the risk to ask your
former employer to ”cooperate” with any possible USCIS RFE for your current
real employment situation.
Q: I have applied for
NIW in a self-petition. After I applied it, I received a best paper award in
Internet Security field. Now I get a "Request for Evidence" asking for
evidence of "how your achievements are more
significant than others in the field and are above that normally attained by somebody at your current
level?" Since this was awarded after the submission of my I-140
application, will this evidence be accepted by USCIS?
A: It may not be considered directly
towards your petition, as you obtained it after submitting the petition. USCIS has consistently cited a precedent case in which the service held that
"beneficiaries seeking employment based immigrant classification must possess the necessary qualifications as of the filing date of the visa petition."
But your best paper award may show that you can sustain your acclaim of "your achievements are more
significant than others in the field". If your include it in your RFE responding,
you need to prove the significance of the award.
Q: I am replying the RFE for my NIW
petition now. If my case is denied later after the RFE. Is it worth to try to
appeal the case?
A: Appealing a case after its denial is difficult to get success. For the appeals
of EB1 and NIW, most petitioners were not able to overcome USCIS decisions. The USCIS denial decisions are not simply
summaries of reasons. They are consistent with established principles in all the cases. They provide a useful guide as to what they are looking for under each criterion.
Q: My EB1-EA application was filed by a lawyer,
who charged $8900. My RFE asked the question of "sustained international acclaim and extraordinary
ability." As you may know, I do not have a Nobel prize like most of us, how
could I answer the RFE question?
A: Most applicants in EB1-EA
category do not have Nobel prize, or something even close to it. For most ordinary
petitioners in EB1-EA, proving extraordinary ability and sustained international
acclaim is not an easy task, but statistics indicate that a lot of petitioners are approved in this
category after the RFE.
In the RFE response statement, the
applicant needs to explain the significance of the submitted documentary evidences
and scholarly articles, and relate to the criteria to prove "sustained international acclaim and extraordinary ability."
Q: I filed the I-140/I-1485 concurrent applications, with work authorization cards (EAD) and advance paroles
together. I want to know what is the difference of RFE for “additional evidence”
and RFE for “initial evidence”?
A: USCIS has confirmed that the procedure for
I-140 application is that the Service Center will first conduct an initial review of the I-140 petition. If the
USCIS determines that a Request For Evidence (RFE) must be issued, then the RFE will cover any and all evidence.
If the RFE is for “additional evidence” which is required to assist an officer in making a decision rather than an RFE for “initial evidence” which is required to make a prima facie
case. If the RFE is for “initial evidence” which is requested by an officer to determine whether or not the petition/application meets the basic
requirements.
Q:
My self-petitioned I-140 got approved, and my I-485 is still pending, may I
leave my current job?
A: For
self-petitioned NIW or EB-EA application, the job change will not affect the
pending I-485. The applicants enjoys a much broader flexibility due to the
different nature of their petitions. The I-485 petition will not depend on which employer you work for during the process.
But it does
not mean that you can do any job you like after the I-485 submitted. You need
to prove and maintain the required qualifications for NIW or EB-EA
application. If you later get a
Request For Evidence (RFE) or an interview for the I-485 petition, and you no
longer maintain the qualifications set in the original I-140 petition, your
I-485 may be rejected.
Q:
I received an RFE from USCIS. The RFE states the usual
requirement for EB1-OR and to asks to provide independent reference for the fact for
"international acclaim as a researcher".
It is a surprise for me
as I am working at a leading research lab in my field in U.S. for the past two
years, since I finished Ph.D. from a university in Germany. I had sent eight
reference letters with the I-140 petition from US, Germany and China.
A:
The problem with the applicant's reference letters is
that they are all from the three places (US, Germany and China.) and written by people
whom the applicant already knew, who can not act as unbiased referees for applicant's work. The applicant can try to get reference letter from
people whom you met once at a conference, or who reviewed your papers before.
Q: I am a researcher in organic chemistry,
self-petitioned I-140 EB1-EA case and received a RFE from USCIS. It said that
"it is not apparent that you have the level
of acclaim required for this visa classification." What is this mean?
A:
The applicant has Ph.D in organic chemistry, and
worked a post-doc in one of the top US university for a year and then spent two
years in Germany as a Alexander Humboldt Fellow. Now, he is working as a
post-doc in US in the medicinal chemistry department for synthesizing anti-HIV
compounds.
In the RFE, USCIS officer wants to see the evidence
from the categories mentioned in the I-140 application form. The applicant needs
to explain the impact
of his research both in organic chemistry and medicinal chemistry.
Q: I am a researcher in Earth Science,
self-petitioned I-140 EB1-EA case and received a RFE. The RFE asked the
question like "how the alien's work is considered original and how it has made a
major contribution compared to all others in the field." I have sent all my
published 12 papers in national and
international journals to CSC.
A: The applicant has PhD in Engineering Physics from US, and now working as researcher
in a large company. He has published 12 papers in national and
international journals, and got 2 national awards. To reply the RFE, the
applicant need to emphasize his original research work in the papers published national and
international journals. It should state
specifically how his work stands out, the direct role his contributions have
had on the field.
Q: I am a researcher in Mechanical Engineering filed I-140 under
EB1-EA category, and
received a letter of RFE from USCIS asking "to provide evidence that
you have sustained national or international acclaim and your achievements have
been recognized". I think that my petition meets all
the USCIS requirements, and do not know how to answer the RFE question correctly.
A:
The applicant has PhD in structural engineering
with nine papers published in journals and conference publication, and he has
reviewed other researchers' work for publication. Also, he provided nine
recommendation letters, and he believe his petition was complete in all
respects.
For the RFE questions, USCIS does not only check if
the applicant meets all the criteria but also checks if the applicant rises to
the top of his or her field. For a successful RFE response, it is very important
to show that you are in the top of your field. The USCIS officer wants to see the
evidence.
Q: I
received REF for my NIW petition from NSC. I am collecting more
recommendation letters from the experts in the field of cancer research. Since I don't have a lawyer, I am not sure if I can open the
letters and quote the useful part into my cover letter.
A: The USCIS no longer routinely requires
submission of original documents or "certified copies." Instead,
ordinary legible photocopies of such documents will be acceptable for filing
and approval of petitions and applications." It is not required to
keep your reference letters in the sealed envelope. You can even send a copy of
the reference letters to USCIS, and kept the original letters.
Q: My EB1-EA case was rejected and my appeal
was dismissed recently. The letter from USCIS
says I can give a motion to reopen the case by providing more information within 30
days. Should I give a motion to reopen the case or should I just forget the whole thing,
and try a new Outstanding Researcher application? I
have a H-1B status right now, and I am a research associate in a medical school.
A: Generally, do not seeking for a motion. The success rate of
an appeal is small, and the success rate of a motion is even less. Since you
have filed the EB1-EA petition, you should have some new research papers published. It is suggested
that he may rewrite his petition and file an EB1-OR or NIW application. As
a research associate in a medical school, if your job is stable, you may also
consider Labor Certification at the same time.
Q: I had earlier received a RFE for NIW. The comments were mostly of a general nature questioning the intrinsic merit of the field.
I submitted 3 more reference letters explaining the importance of my work. Now I
received a denial notice. A lawyer suggests a motion to reopen before appealing.
This lawyer also suggests getting strong statements from my references to
reiterate that I am truly outstanding researcher. Any comments about this strategy?
Another point made by USCIS is providing letter from federal agency about the national impact of my work.
I provided a letter from a previous reference from NIH, stating that no federal employee can write this representing the agency. It is beyond the policy of such
agencies, it is a right answer? I also have a EB1-OR application in pending of
RFE processing.
A: The applicant has a Ph.D in
Chemistry, and now working as a scientist in a pharmaceutical company. He had 11
publications and 7 reference letters from other scientists, professors, previous collaborators
around the world. He also has a EB1-OR application in pending.
The appeal is a long process, it is
better to visit USCIS website first to understand its denial decision and the
appeal process to see what they are looking for, and to see how you could rescue
your case on substantive grounds relating to the criteria. Also, hiring an
experienced attorney may be needed in addressing the technical and legal issues regarding an appeal.
It may be be easier to answer the RFE for
EB1-OR, since NIW has the NYSDOT case and its related questions. It should not be
necessarily to affect his pending EB1-OR application, since they are in different
immigration categories. A person may qualify for EB1-OR, but not in an area of national interest.
Q
How could the "Complete Do-It-Yourself
Package for Request For Evidences (RFE)" help
my RFE?
A: If you get a Request For
Evidence (RFE) notice from an USCIS Service Center, it is necessary that you must work
hard to
provide requested evidence and persuade the USCIS officers to approve your case.
It is critical to appropriately
and proficiently reply the Request For Evidence. Incorrect
response of the RFE will directly result in your I-140 petition rejection.
To help you replying the RFE, we provide the high quality and case approved Complete Do-It-Yourself
Packages for Request For Evidence, for I-140 petition of
EB1-Extraordinary Ability, EB1-Outstanding Researcher or Outstanding
Professor, and National Interest Waiver.
In each RFE package, we present methods of analyzing
RFE questions, RFE replying strategies, means of strengthening your case,
detailed RFE cases analysis, sample cover letter, sample reference
letters, and more. With the RFE package, you get all the information you need and step-by-step
knowledge of how to prepare an
efficient, professional, and complete response to your RFE notice, and
eventually
get your Green Card.
PART TWO: Frequently Asked Questions/ Answers about Request For Evidences
(RFF) for I-140 EB1 Multinational Executive or Manager petition, and L1 Visa Application or Extension
Q: What re the
general requirements for I-140 EB1 Multinational Executive or Manager petition?
A: For EB1 Multinational Executive or Manager petition, an U.S. employer is required, but
the Labor Certification is not required. This immigrant visa category is designed to facilitate international transfer of executive or managerial personnel within multinational companies.
The EB1C immigrant visa category is designed to facilitate international transfer of executive or managerial personnel within multinational companies. The transfers can be between different branches of the same company, or between different companies with one of the following types of relationship:
parent-subsidiary, home office-branch office, and affiliate-affiliate.
In this category, the alien employee must have worked in either a managerial or executive capacity, for the related company abroad, for at least a one-year period in the three years preceding the transfer.
The employee should be coming to the United States company to function in an executive or managerial capacity. The employee may already be in the United States in a nonimmigrant visa status such as the
L-1A visa or one of the E visa classifications. The U.S. company must show that it is either the parent, subsidiary, affiliate, or branch office of the company abroad and the relationship between the U.S. and overseas operations must be documented and
proved
Q: What are
the document requirements to reply the Request For Evidence notice for an I-140 EB1 Multinational Executive or
Manager petition?
A:
1) Provide evidence and a cover letter that describes the name of the foreign employer, the position offered in the U.S., the position held abroad and the years of employment as well as the date the beneficiary transferred to the U.S.
2) Provide evidence that the alien
beneficiary is working in an executive or manager capacity;
3) State the claimed relationship between the foreign employer and the U.S. petitioner, i.e. affiliates, subsidiary, joint venture etc.
4) Provide evidence that the U.S. employer has been doing business for at least one year prior to the filing of the petition.
Q: What is the definition of
"Managerial Capacity" to qualify for the I-140 EB1 Multinational Executives or Managers
Green Card application?
A: The statutory definition of "managerial capacity" allows for both "personnel managers" and "function managers."
The managerial capacity means an assignment within an organization in which the beneficiary primarily:
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Manages the organization, department, subdivision, function, or component of the organization;
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Supervises and controls the work of other supervisory, professional, or managerial employees;
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Possesses authority to hire and fire or recommend those and other personnel actions (such as promotion and leave authorization) for employees directly supervised;
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Exercises discretion over the day-to-day operations of the activity or function for which the employee has authority.
Contrary to the common understanding of the word "manager” as any person who supervises others, the statute has a much more limited definition of the term “manager.”
A first-line supervisor is not considered to be acting in a managerial capacity merely by virtue of the supervisor’s supervisory duties, unless the employees supervised are professional.
Q: What is the definition of
"Function Manager" to qualify for the EB1 Multinational Executives or Managers
Green Card application?
A: The term “functional” or “function manager” applies generally when a beneficiary does not supervise or control the work of a subordinate staff, but instead is primarily responsible for managing an "essential function" within the organization.
The definition of the term “manager” includes functional managers. A manager may qualify for
EB1C classification as a functional manager if the petitioner can show, among other things, that the beneficiary will be primarily managing or directing the management of a function of an organization, even if the beneficiary does not directly supervise any employees.
As it relates to “function managers,” managerial capacity means an assignment within an organization in which the beneficiary primarily:
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Manages the organization, or a department, subdivision, function, or component of the organization;
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Manages an essential function within the organization, or a department or subdivision of the organization;
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Functions at a senior level within the organizational hierarchy or with respect to the function managed; and
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Exercises discretion over the day-to-day operations of the activity or function for which the employee has authority.
Q: I am a
manager of marketing department in a large multinational company. My employer
applied EB1 Multinational Managers Green Card for me, and now we got Request For
Evidence letter asking for my managerial function and "direct supervision of other employees."
How to reply the RFE?
A: To determine whether the beneficiary meets the definition of
managerial function, a functional manager is defined as a "manager who has responsibility for one area of activity such as finance, marketing, production, personnel, accounting, or sales."
An important, although not necessarily determinative, factor in determining whether an individual qualifies as a functional manager is the alien's authority to commit the company to a course of action or expenditure of funds. Functional managers perform at a senior level in the organization and may or may not have direct supervision of other employees.
Q: What is the definition of
"Executive Capacity" to meet the requirements of I-140 EB1 Multinational Executives or Managers
Green Card application?
A: The statutory definition of the term "executive
capacity" focuses on a person's position within an organization. The term “executive capacity” means an assignment within an organization in which the employee primarily:
-
Directs the management of the organization or a major component or function of the organization;
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Establishes the goals and policies of the organization, component, or function;
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Exercises wide latitude in discretionary decision-making; and
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Receives only general supervision or direction from higher-level executives, the board of directors, or stockholders of the organization.
Q: I am the company
President, but USCIS officers still say that I am not in "executive
capacity" for my EB1-C immigrant application. How to reply the Request For
Evidence request?
A: An individual will not be deemed an executive under the statute simply because they have an executive title, or because some portion of their time is spent "directing" the enterprise as the owner or sole managerial employee; the focus is on the primary duties of the individual.
In this regard, there must be sufficient staff (e.g., contract employees or others) to perform the day-to-day operations of the petitioning organization in order to enable the beneficiary to be primarily employed in the executive function.
The petitioner must also establish that the U.S. entity itself is in fact conducting business at a level that would require the services of an individual primarily engaged in executive
or managerial functions. USCIS adjudicators will consider the nature of the business, including its size, its organizational structure, and the product or service it provides.
Q: What I need
to know to response the RFE question of "Managerial or Executive
Capacity," for the EB1 Multinational Executives or Managers application?
A: When examining the executive or managerial capacity of the beneficiary, an
USCIS adjudicator will look first to the petitioner's description of the job duties.
Specifics are an important indication of whether a beneficiary's duties are primarily executive or managerial in nature. Merely repeating or paraphrasing the language of the statute or regulations
can not satisfy the petitioner's burden of proof.
If the beneficiary performs non-managerial administrative or operational duties, the description of the beneficiary's job duties must demonstrate what proportion of the beneficiary's duties is managerial in nature, and what proportion is non-managerial. A beneficiary that primarily performs non-managerial or non-executive duties will not qualify as a manager or executive under the
EB1C definitions.
Q: In the RFE
of our Form I-140 EB1C petition, USCIS asked the question of "tiers
of subordinate employees" and "job titles of subordinate
employees." Why I need to provide the subordinate employee
information?
A: Beyond the petitioner’s description of the beneficiary’s proposed job duties,
USCIS adjudicators will review the totality of the evidence, including descriptions of a beneficiary's duties and his or her subordinate employees, the nature of the petitioner's business, the employment and remuneration of other employees, and any other facts contributing to a complete understanding of a beneficiary's actual role in a business. The evidence must substantiate that the duties of the beneficiary and his or her subordinates correspond to their placement
in an organization's structural hierarchy.
For smaller organizations,
USCIS may request a description of the overall management and executive personnel structure supported by position descriptions for the managerial and executive staff-members of the organization. For organizations that are substantial in size,
USCIS may request comparable descriptions for the organizational unit where the alien beneficiary is to be employed. If
USCIS adjudicator believes that the facts stated in the petition are not true, and can articulate why in
denial, then the EB1C petition may be rejected.
Q: Due to our
business needs, we do not need to hire many employees. Now USCIS asks the
"staffing levels" in the RFE notice of our EB1C application. Why
our employee number is a problem?
A: If staffing levels are used to determine whether a beneficiary's job capacity is primarily "executive" or "managerial" in nature, the reasonable needs of the business enterprise in light of its overall purpose and stage of development
will be considered by USCIS.
In evaluating reasonable needs,
USCIS adjudicator may not hold a petitioner to his or her undefined and unsupported view of "common business practice" or "standard business logic." It is the petitioner’s burden to demonstrate the company’s reasonable needs with respect to staff or the organization’s structure.
Q: I am
working for a small company. We got an Request For Evidence letter after
my EB1 Multinational Executives or Managers application. Do you think that
it is because our company is too small?
A: A small company is not precluded from being classified as an
EB1 multinational manager or executive for immigrant purposes, provided the requisite corporate affiliation exists and all other requirements are met.
However, it may be difficult for a petitioner to establish that the
alien employee will be engaged primarily in a managerial or executive function. While a
small company may have some managerial or executive duties, simply to keep the business running,
the alien beneficiary will normally be spending the majority of his/her work time doing the day-to-day work of the
business, not in the executive or management capacity.
Q: With prior approval of an L-1A petition,
why I got RFE notice letter when I applied EB1 Multinational Executives or Managers (EB1C)
Green Card?
A: USCIS is required to adjudicate an
EB1C petition on its own merits, even if a manager or executive who was previously granted L-1A nonimmigrant classification as a nonimmigrant manager or executive.
Though the prior approval of an L-1A petition on behalf of the alien may be a relevant consideration in adjudicating the
EB1C petition, USCIS is not bound by the fact that the alien was previously accorded the L-1A classification if the facts do not support approval of the
EB1C petition. Eligibility as an L-1A nonimmigrant does not automatically establish eligibility under the
EB1C criteria; each petition is separate and independent, and must be adjudicated on its own merits, under the corresponding statutory and regulatory provisions.
Q: I have L-1A
visa, does it mean that I am certainly qualify for EB1 Multinational Executives or Managers (EB1C)
Green Card?
A: Each Form I-140 petition must be adjudicated on its own
merits. We are aware that some immigrant courts have asked USCIS to provide an explanation as to why, if the alien had previously been classified in a roughly analogous
L-1A nonimmigrant category, USCIS has determined that the alien is not eligible for classification in the employment-based immigrant
EB1 Multinational Executives or Managers immigrant visa classification in
question.
For this reason, USCIS will provide a brief discussion, geared to the specific material facts of the underlying I-140 petition, as to
why a petitioner may fail to meet its burden to establish eligibility for approval of its
EB1C I-140 petition.
Q:
With L-1B visa, Can I apply for EB1 Multinational Executives or Managers (EB1C)
Green Card?
A: There is no provision of law that allows an individual who was/is employed in a purely specialized knowledge capacity abroad to be classified as a “specialized knowledge”
EB1C immigrant. However, it should be noted that some EB1C beneficiaries who are classified as L-1B nonimmigrants might qualify for the
EB1C classification because their specialized knowledge employment abroad also would have qualified as managerial or executive employment, and because the petitioners intend to employ them in managerial or executive positions on a permanent basis.
Q:
We recent got an RFE notice for my EB1 Multinational Executives or Managers
application, what kind of help we
can get from your service?
A:
If
you get a Request For Evidence (RFE) notice for your EB1
Multinational Executive or Manager Green Card petition from
an USCIS Service Center, it is necessary that you must work hard to
provide requested evidence in a short time, and persuade the USCIS
adjudicators to approve your case. It is critical to appropriately
and proficiently reply the Request For Evidence. Incorrect response of the
RFE will directly result in your EB1C
Green Card petition rejection.
To help you replying the RFE,
we provide the high quality and case-proven "Complete
Do-It-Yourself Package of Request For Evidence (RFE) for EB1 Multinational
Executives or Managers (EB1C)" In
the RFE package, we present methods of analyzing RFE questions, RFE replying
strategies, means of strengthening your case, detailed RFE cases analysis,
sample cover letters, and more. With the RFE package, you get all the
information you need and step-by-step knowledge and strategies of how to prepare
an efficient, professional, and complete response to your RFE notice of EB1
Multinational Executive or Manager Green Card petition, and eventually get your
Green Card approval.
Q: What are
the challenges for L-1A visa / L-1B visa application and extension?
A:
Obtaining approvals for L-1A/ L-1B applications have become much harder in
recent years. The alien employee must have also worked in an executive,
managerial or specialized knowledge capacity for the foreign entity for at
least one year in the past three years, and is being sponsored to work in
the same capacity for the U.S. entity. Most of the issues that we see in
L-1 Request For Evidence (RFE)
challenge whether the L-1 employee will be working in a managerial,
executive, or specialized capacity.
Q: What are
the major challenges for L-1A visa extension?
A: It would not be an
exaggeration to state that the USCIS often approves the initial L-1A visa
on a vision -- supported by a well drafted business plan and a
convincing amount of money in the bank. However, if getting ones foot in
the door seems easy, renewal of the visa frequently turns out to be a
nightmare after the issue of Request For Evidence (RFE)
from a USCIS Service Center, for the applicant who has uprooted
hearth and home with the intention of permanently relocating to the United
States.
Based on cases published by the USCIS' Administrative Appeals Office (AAO),
the reasons for most of the denied L-1A visa application or extension were
virtually identical:
Q:
What should I know for the Request
For Evidence (RFE) of an L-1 visa application?
A:
After the USCIS Form I-129 - Petition for a Nonimmigrant Worker submission, it is not very rare that the petitioner receives a Request For Evidence (RFE) notice from an USCIS Service Center for your L-1A / L-1B visa application or extension. In some occasional situations, a few petitioners may receive a letter of Intent to Deny (ITD). The possibility that an L1 visa application may get RFE changes from one USCIS Service Center to another USCIS Service Center.
Generally, RFE will ask the petitioner to submit specific supplement materials, such as evidence to show the U.S. company will grow to a size to support a managerial position, or submit evidence for the duties of general managerial functions, or submit probative evidence verifying that the beneficiary’s specialized knowledge is uncommon and noteworthy. For
the RFEs asking for particular evidence or supporting materials, sometimes it is difficult for a petitioner to provide the exact required documents.
Q:
For Request For Evidence (RFE) of an L-1A visa or L-1B visa application or
extension, what are the general RFE requests for the beneficiary?
A: For many L1 RFE requests,
USCIS wants to make sure the beneficiary can meet the basic requirements
for obtaining L1 visa:
Q:
For Request For Evidence (RFE) of an L-1A visa or L-1B visa application or
extension, what are the general RFE requests for the employer?
A:
In many RFE requests, USCIS also wants to make sure the petitioner can meet the
basic requirements for sponsoring the L1 visa:
Q:
For RFE of L-1A visa application or extension, what kind of evidence are
requested in the RFE?
A: The additional evidence requested in the RFE notice of L-1A
visa application or extension often includes the following categories:
-
The beneficiary’s duties
of as an executive or manager in entities inside and outside the
United States;
-
Company structure and
organizational chart for entities inside and outside the United
States;
-
The beneficiary’s
subordinates information;
-
The beneficiary’s
employment evidence;
-
Additional evidence for
opening a new office/business in United States;
-
Evidence that establishes
the financial status of the U.S. organization.
Q:
For RFE of L-1B visa application or extension, what kind of evidence are
requested in the RFE?
A: The additional evidence
requested in the RFE notice of L-1B visa application or extension often
includes the following categories:
-
The beneficiary’s
specialized knowledge;
-
Evidence to show the scope
and duties of the position held by the beneficiary in a qualifying
capacity;
-
The beneficiary’s one
year employment with L1 visa sponsor outside the United States;
-
The beneficiary’s job
description, the percentage of time to be spent on each duty, level of
responsibility;
-
Beneficiary’s training
or experience;
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Employer's Information.
Q:
After my employer submitted my L-1B visa renewal application, we got an
Request For Evidence (RFE) from USCIS Vermont Service Center asking for my
"Specialized Knowledge". What should I know before we reply the
RFE?
A: The USCIS regulations
elaborate on the definition of "Specialized Knowledge" by
including knowledge of the petitioner's “product, service, research,
equipment, techniques, management, or other interests and its application
in international markets.” According to a USCIS Memorandum, specialized
knowledge must be ''different from that generally found in the particular
industry'' and ''need not be proprietary or unique, but it must be
different or uncommon,” and held at an “advanced” level. There is
also no need to show a labor shortage for this particular skill in the
U.S.
To serve in a specialized
knowledge capacity, the foreign national's knowledge must be different
from or surpass the ordinary or usual knowledge of an employee in the
particular field, and must have been gained through significant prior
experience with the petitioning organization. A specialized knowledge
employee must have an advanced level of expertise in his or her
organization's processes and procedures or special knowledge of the
organization which is not readily available in the United States labor
market.
When drafting a response to an
RFE questioning whether a beneficiary will be employed in a specialized
knowledge capacity, the practitioner must clarify that the knowledge
possessed was gained within the employment of the foreign entity, not on
the employer's client site.
Q:
We recent got an RFE notice for my L-1A visa extension, what kind of help we
can get from your service?
A:
If you get a Request For Evidence (RFE) notice for your L1 visa
application or extension from an USCIS Service Center, it is necessary
that you must work hard to provide requested evidence in a short time, and
persuade the USCIS adjudicators to approve your case.
It is critical to appropriately and proficiently reply the Request For
Evidence. Incorrect response of the RFE will directly result in your L1
visa application or extension rejection.
To help you replying
the RFE, we provide the high quality and case-proven "Complete
Do-It-Yourself Package of Request For Evidence for L-1A / L-1B Visa
Application or Extension". In the RFE package, we present
methods of analyzing RFE questions, RFE replying strategies, means of
strengthening your case, detailed RFE cases analysis, sample cover
letters, and more. With the RFE package, you get all the information you
need and step-by-step knowledge and strategies of how to prepare an
efficient, professional, and complete response to your RFE notice of L1
visa application or extension, and eventually get your L1 visa
approval.
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