Asked Questions and Answers about Request
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?
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:
Manages the organization, department, subdivision, function, or component of the organization;
Supervises and controls the work of other supervisory, professional, or managerial employees;
Possesses authority to hire and fire or recommend those and other personnel actions (such as promotion and leave authorization) for employees directly supervised;
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:
Manages the organization, or a department, subdivision, function, or component of the organization;
Manages an essential function within the organization, or a department or subdivision of the organization;
Functions at a senior level within the organizational hierarchy or with respect to the function managed; and
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;
Establishes the goals and policies of the organization, component, or function;
Exercises wide latitude in discretionary decision-making; and
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:
The petitioner did not establish that the beneficiary will be employed in a primarily managerial or executive capacity;
The petitioner did not employ adequate or sufficient personnel;
The petitioner did not establish physical offices;
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:
The employee must have worked abroad for the overseas company for continuous period of one year during the preceding three years;
The employee must have been employed abroad in an "executive" or "managerial" position (L-1A), or a position involving "specialized knowledge" (L-1B).
The employee must be coming to the U.S. company to fill one of these capacities - Executive, Managerial, or Specialized Knowledge;
The employee must be qualified for the position by virtue of his or her prior education and experience;
The L1 visa holder must intend to depart the United States upon completion of his or her authorized stay.
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:
The company at which the employee fulfilled the work requirements must be related to the U.S. company in a specific manner, such as parent/subsidiary, sister companies with common parent;
The company must be a qualifying organization - one that is doing business in the United States and one other country throughout the entire period of transfer;
The prospective U.S. employer has been doing business for at least one year;
The company has an office in the United States, as well as in the home country of the petitioner.
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;
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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