Frequently Asked Questions and
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: What is the Request For Evidence (RFE) for an EB1 Multinational Executive or Manager Petition?
A: Simply presenting evidence which relates to the EB-1C petition requirements does not necessarily mean that the immigrant visa application should be approved, since the USCIS adjudicator needs to evaluate the submitted evidence. If the USCIS adjudicator determines that the evidence does not meet the standard for EB-1C classification, the additional evidence may be requested, and it is called Request For Evidence, or RFE.
An USCIS adjudicator may issue a Request For Evidence (RFE) on EB-1C cases that were clearly not approvable. The issuance of RFEs in these cases resulted in delays in the processing time. On the other hand, many cases could be approved if the applicants had been given the opportunity to provide additional information in response to the RFEs.
A Request for Evidence (RFE) from a USCIS Service Center is that the USCIS adjudicator is requesting additional evidence to address and support specific parts of the pending I-140 petition. The petitioner may have certain days indicated in the RFE notice to respond the requests in the RFE notice. If the petitioner does not respond within the indicated time, the petition may be denied by USCIS. After USCIS receives the response to an RFE notice, further action will generally occur within 60 days, but may take longer for some cases.
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 a manager in a multinational company. Is the EB1 Multinational Executive or Manager petition difficult to get approval?
A: Many multinational executives or managers may wonder whether they could qualify for the EB1 Multinational Executives or Managers immigration visa classification. The common misunderstanding could be that the EB1 Multinational Executives or Managers immigrant visa application is very hard to get approval. Therefore, some alien executives or managers may apply for Green Card in other categories.
Due to the immigrant visa number retrogression for some countries, the alien applicants from these countries need to wait for years to get Green Card application approval in EB-2 and EB-3 categories. Many new immigrants are looking for other options. The EB1 Multinational Executives or Managers immigration visa category is such an option for those aliens with executive capacity or manager capacity in multinational companies. Because the EB-1C category is in the First Preference, and the immigrant visas are immediately available.
Q: What is the major evidence that should be submitted to USCIS for an EB1 Multinational Executive or Manager petition?
A: Evidence must be submitted to support a Form I-140 Petition for Multinational Executives or Managers. Unlike the requirement for EB1 Outstanding Researcher or Professor Petition, in which alien applicant must demonstrate that the alien is recognized internationally as outstanding in the academic field, and unlike the EB1 Extraordinary Ability Petition, in which the alien applicant must have garnered "sustained national or international acclaim in the field of endeavor", an alien beneficiary for EB-1C petition should prove that he or she is " in executive capacity or manager capacity in U.S.", and the U.S. employer should have " the ability to pay the offered wage or salary."
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: The burden of EB-1C petition approval rests with the petitioner. The petitioner should provide substantial evidence to meet the regulation requirements of the EB-1C immigrant visa. If the alien beneficiary is qualified, then the success depends largely on the way the petition is presented to USCIS.
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. What are the frequently asked questions in the Request For Evidence (RFE) for L-1A visa application or extension?
A: The frequently asked questions in the Request For Evidence (RFE) for L-1A visa application or extension include the "Management capacity"
For an L-1A visa application or extension, the Request For Evidence (RFE) notice from USCIS may ask some tough questions. For example, you may be asked to provide the job description, education level and salary of those employees under your management as an evidence. You may also be asked to provide the education level and salary details of your supervised employees, and probably the education level and salary of some client employees not in your control.
The following is an example of RFE questions for an L-1A visa extension:
Evidence of Managerial Position in the United States. You must show that the position in the United States involves qualifying managerial duties, you may have to prepare a detailed response for the below queries:
1) How the beneficiary will manage the organization, department, subdivision, function, or component of the organization;
2) How the beneficiary will supervise and control the work of other supervisory, professional, or managerial employees, or manage an essential function, department, or subdivision of the organization;
3) Whether the beneficiary will have authority to hire and fire, or recommend similar personnel actions, such as promotion and leave authorization, if other employees will be directly supervised. Provide information how employees will be directly supervised, how the beneficiary will function at a senior level within the organizational hierarchy or with respect to the managed function; and
4) How the beneficiary will make decisions on daily operations of the activity or function under his or her authority. If the beneficiary will be a first-line supervisor, submit evidence showing the supervised employees will be professionals.
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. What are the frequently asked questions in the Request For Evidence (RFE) for L-1B visa application or extension?
A: The frequently asked questions in the Request For Evidence (RFE) for L-1B visa application or extension include the "Specialized Knowledge".
For an L-1B visa application or extension, the Request For Evidence (RFE) notice from USCIS may ask some tough questions also, such as "Specialized Knowledge". For L-1B visa application, USCIS normally believe that "simply making positions that are normally associated with specialized knowledge staffs are not sufficient for classification. The actual scope, function, and specialized knowledge of both the beneficiary and the business must be reviewed."
The following is an example of RFE questions for an L-1B visa extension:
Upon review of the record as presently constituted casts doubt on the eligibility for the classification requested. The record asserts that the beneficiary is coming to the United States to fulfill the duties of a temporary intra-company transferee in a capacity that involves specialized knowledge.
Section 101(a)(15)(L) defines an "intra-company transferee" as: "an alien who, within 3 years preceding the time of his application for admission into the United States, has been employed continuously for one year by a firm or corporation or other legal entity or an affiliate or subsidiary thereof and who seeks to enter the United States temporarily in order to continue to render his services to the same employer or a subsidiary or affiliate thereof in a capacity that is managerial, executive, or involves specialized knowledge, and the alien spouse and minor children of any such alien if accompanying him or following to join him"
Submit evidence to show the beneficiary, within 3 years preceding the time of his application for admission into the United States, has been employed continuously for one year by a firm or corporation, or an affiliate or subsidiary, and who seeks to enter the United States temporarily in order to continue to render his services to the same employer or a subsidiary or affiliate thereof in a capacity that involves specialized knowledge.
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.
Q: My employer filed a renewal application for my L-1A visa, and we got a notice of Request for Additional Evidence from USCIS Vermont Service Center. The RFE requests include the organizational charts of my employer in and outside U.S., and my position in the charts. What I should know for this kind of L-1A extension RFE?
A: To replying the REF requests, the organizational charts are important pieces of the L-1 visa application or L-1 visa extension. Every company should submit two organization charts, one for the home country office and the other for the company in the U.S. They are especially important when the company seeks to send an executive or a manager to the U.S. on an L-1A visa. When transferring persons from higher company ranks, the role of the organization chart is to show that the concerned person is an executive or a manager, and to present a clear view to USCIS about the company’s personnel expansion plans in the new U.S. office.
When it comes to RFE request of organization charts, creativity is highly discouraged and the best organization charts are those that provide a clear hierarchical view of the company’s leadership from top to bottom. One common problem in making organization charts is that companies often insist on including department or divisions on the chart. This should be avoided, because it only provides a confusing picture to USCIS.
The various departments or divisions should be represented by its personnel on the chart and not as separate entities by the name of the division. The idea behind the organization chart as used in the immigration context is to show the personnel reporting structure in your home company and the U.S. entity.
Q: I received a Notice of Intent to Deny for my EB1 Multinational Executive or Manager petition. What should I do?
A. The Notice of Intent to Deny (NOID) is that the USCIS adjudicator is giving notice that USCIS will deny the pending case, unless you provide certain extra documentation.
The petitioner may have certain days indicated in the NOID notice to respond. If the petitioner does not respond within the prescribed period, the petition may be denied. Once the USCIS receives your response to an NOID, further action will generally occur within 60 days, but may take longer.
Q: What are the most common reasons of EB-1C petition denial?
A: USCIS adjudicators often deny the EB-1C petition based on the following 3 independent grounds of ineligibility:
1) the petitioner failed to establish that the beneficiary was employed abroad in a qualifying managerial or executive capacity; or
2) the petitioner failed to establish that it would employ the beneficiary in a managerial or executive capacity; or
3) the petitioner failed to establish that it has the ability to pay the beneficiary's proffered wage.
EB-1C petitioner should provide an adequate job description containing detailed information. The USCIS adjudicators also want to see that the petitioner has the organizational complexity to warrant the employment of the beneficiary in a primarily executive capacity or manager capacity.
Normally, USCIS adjudicators hope the petitioner to provide the detailed job description of the beneficiary, which consists of a list of specific daily tasks with the percentage of time assigned to each task, not to a group of tasks or to a related group of job responsibilities.
Q: What is the meaning of "establishing eligibility at the time of filing"?
A: For a RFE case, if the petitioner added more employees after the EB-1C petition submission, while the added staffs appears to be in direct response for the USCIS adjudicator's request for the beneficiary's executive capacity or manager capacity, the precedent case law mandates that a petitioner must establish eligibility at the time of filing; a petition cannot be approved at a future date after the petitioner or beneficiary becomes eligible under a new set of facts.
As such, U.S. Citizenship and Immigration Services (USCIS) must consider the petitioner's organizational hierarchy as it existed at the time of filing, in order to determine whether the petitioner was eligible to classify the beneficiary as a multinational manager or executive as of the priority date.
Q: Why the beneficiary's job responsibilities are important?
A: In an EB-1C Multinational Manager or Executive petition, if the petitioner claims that approximately 40% of the alien beneficiary's time was spent making decisions about growth into different markets, evaluating the petitioner's potential competitors, deciding how the petitioner will distinguish itself, and forming partnerships with other entities, then it is the petitioner's responsibility to establish what actual underlying tasks that the alien beneficiary would perform to meet these business goals.
If the petitioner fails to comply with the USCIS' RFE request for a detailed description of the beneficiary's proposed daily tasks, or the petitioner's limited staffing, then USCIS will be unable to determine whether the petitioner was able to relieve the beneficiary from having to primarily perform non-qualifying tasks at the time of filing. Therefore, USCIS cannot approve the petition.
Q: My EB1 Multinational Executive or Manager petition was denied by USCIS, What could I do?
A: If your EB-1C petition is denied by USCIS, you can file an EB-1C petition again, or file in other categories. For example, you can consider the EB1 Aliens with Extraordinary Ability Petition (EB-1A) or EB2 National Interest Waiver Petition (NIW), if you can meet their regulation requirements.
The immigration law does not restrict the time you can file an EB-1C petition again after the rejection of your previous EB-1C application. A previous rejected EB-1C petition does not bar you from submitting another EB-1C petition again subsequently, and regardless which immigrant classification is concerned. However, unless your situation has improved, it is not advisable for you to simply submit a similar petition again, because it is unlikely your case will be approved by USCIS.
Q. If my EB1 Multinational Executive and Manager petition is denied by USCIS, how could I file EB-1A or NIW petition by myself without the employer's sponsorship?
A: To file an EB-1A petition for alien with extraordinary ability, an alien applicant needs to prove that he or she has “extraordinary ability” in a field, which normally requires greater achievement and ability. Also, for EB1 Extraordinary Ability applicants, they need to show a major internationally recognized award, or documentation from at least three of ten criteria of EB1A petition.
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For EB2 National Interest Waiver Green Card petition or NIW immigrant visa petition, the regular labor certification requirement is waived, and an immigration applicant can apply for an EB2 national interest waiver green card without a labor certification or a job offer from a U.S. employer. Thus, National Interest Waiver green card application has clear advantages for scholars, researchers, post doctoral research fellows, Ph.D. students, and other advanced degree professionals.
Q: My Form I-140 immigrant visa application based on EB1 Multinational Executive and Manager was denied after the Request For Evidence (RFE) response to USCIS. What should I do next? Can I file a appeal of a Motion to Reopen? or file a Motion to Reconsider?
A: A Motion to Reopen is a request to the original decision officer of USCIS to review a decision of the immigrant petition. The motion must be based on factual grounds, such as the discovery of new evidence or changed circumstances.
If your Form I-140 immigrant petition was denied by USCIS due to a Request For Evidence (RFE) or a Notice of Intent to Deny, you can file a motion to reopen if you can show that:
• The requested evidence was not material;
• The required initial evidence was submitted with the petition;
• The request for appearance or additional evidence was complied with during the allotted period, or
• The request for evidence or appearance was not sent to the address of record.
As another choice, you can also file a "Motion to Reconsider." A motion to reconsider is a request to the original decision officer of USCIS to review a decision based on new or additional legal arguments. The motion must establish that the decision was incorrect based on the evidence of record at the time of that decision, and it must state the reasons for reconsideration.
A motion to reconsider must be supported by “any pertinent precedent decisions to establish that the decision was based on an incorrect application of law or USCIS policy.” Unlike a motion to reopen, new evidence or changed circumstances cannot support the filing of a motion to reconsider.
Q: For my EB1 Multinational Executive or Manager Green Card application (EB-1C), we received an Request For Evidence (RFE) notice from USCIS for more evidence of "the employer's ability to pay. " What documents can be supplementary evidence for the RFE response?
A: For EB1 Multinational Executive or Manager Green Card application (EB-1C), if the required initial evidence does not establish ability to pay, the USCIS adjudicator may send a Request For Evidence (RFE) notice to the petitioner for more evidence, or even deny the EB-1C petition since the petitioner has not met the burden to establish eligibility for the requested benefit.
Normally, net income and net current assets do not always accurately reflect the financial health of an organization or the employer. Therefore, according to these calculations, it may appear that the petitioner has not demonstrated an ability to pay. Thus, the use of additional financial information and different evidence may be able to demonstrate the employer's ability to pay.
The USCIS adjudicator can consider additional financial information, such as profit/loss statements, bank account records, or personnel records, but he or she may choose not to accept such information or different calculations. But it is wise to provide all financial information that may show ability to pay and to clearly explain how additional evidence other than net income and net current assets demonstrate the ability to pay.
The petitioner can have its financial officers and accountants perform such calculations in order to show that the company is able to pay the beneficiary. Statements from the petitioner’s financial officers clearly explaining the analysis and how it proves ability to pay should then be included with the EB1 Multinational Executive or Manager Green Card application.
Q: How to Assemble and Send My RFE Response to USCIS?
A: Before sending your Request For Evidence (RFE) response to United States Citizenship and Immigration Services (USCIS), you should make a duplicate copy of the USCIS' RFE notice, and save it for your records, because the original RFE notice should be the first page of your RFE response packet.
After receiving your RFE response packet, USCIS will scan the RFE notice and forward it for further processing. Therefore, if you do not include the RFE notice, or if it is not on top of your RFE response packet, you can expect further delays for your Green Card application process.
Also, you need to write a response cover letter that clearly outlines the contents of your submission, and it should reply each of the RFE requests in detail. The cover letter should be organized very similarly to the RFE requests, so that you can show the USCIS adjudicator handling your petition case that you provided all of the requested information. You should also make copies all of the documents that you send to USCIS, and save them for your records.
The RFE notice should include the USCIS address to which your RFE response should be mailed. You should make sure that you mail the RFE response to that USCIS address, and not any other USCIS address to which you may have sent documents before.
It is better to send your RFE response via priority mail with delivery confirmation, so that you have proof that you complied the USCIS requirements with the deadline.
|More Articles about Request For Evidence (RFE) Response Process|
|•||What Is Request For Evidence (RFE) for Green Card Petition|
|•||RFE Regulations and Issues for Request for Evidence|
|•||Typical Requests and Questions Asked in RFE Notice|
|•||How to Prepare RFE Response for EB1 Extraordinary Ability|
|•||How to Prepare RFE Response for EB1 Outstanding Researcher|
|•||How to Prepare RFE Response for EB1 Executive / Manager|
|•||How to Prepare RFE Response for National Interest Waiver|
|•||How to Prepare RFE Response for L-1A Visa or L-1B Visa|
|•||Frequently Asked RFE Questions and Answers for EB-1A, EB-1B, NIW|
|•||William's Answers for RFE Response Questions|
|•||USCIS Memorandum #1 on Requests For Evidence|
|•||USCIS Memorandum #2 on Requests For Evidence|
|•||Do-It-Yourself Packages for RFE of EB-1A, EB-1B, EB-1C, NIW, L1 Visa|
|•||Request For Evidence (RFE) for Green Card and Visa Application|
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