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1.
The Basic Requirements of EB1 Multinational Executive or
Manager Green Card Petition
Under EB1
Multinational Executive or Manager (EB-1C) Green Card category, the
employer must file the petition for the beneficiary, and the employer
must be a legal entity such as a firm, a corporation, or an affiliate
or subsidiary of a foreign company. Furthermore, the employer must have
done business in the U.S. for at least a year, and that both the U.S.
division and the foreign division must be doing business on a regular,
systematic and continual basis.
When the
filing the case, the employer must prove that, first, the beneficiary
has worked for the employer for at least one year in the preceding 3
years in a managerial or executive capacity at the time of the filing.
Second, the person must continue to work for the same employer, or
affiliate or subsidiary. Third, the person has worked for the employer
in a managerial or executive capacity before entering the U.S. The U.S.
Citizenship and Immigration Services (USCIS) does not allow first-line
supervisor to qualify under this category, and it has much discretion
in determining whether the beneficiary is actually working in a
managerial or executive capacity.
To qualify
as "Managerial Capacity” the beneficiary must primarily:
1)
Manages the organization, or a department, subdivision, function, or
component of the organization;
2)
Supervises and controls the work of other supervisory, professional, or
managerial employees, or manages an essential function within the
organization, or a department or subdivision of the organization;
3)
Has the authority to hire and fire or recommend those as well as other
personnel actions, such as promotion and leave authorization, if
another employee or other employees are directly supervised, or if no
other employee is directly supervised, functions at a senior level
within the organizational hierarchy or with respect to the function
managed; and
4)
Exercises direction over the day-to-day operations of the activity or
function for which the employee has authority.
The term
"Executive Capacity” means that the beneficiary primarily:
(1)
Direct the management of the organization or a major component or
function of the organization;
(2)
Establish the goals and policies of the organization, component, of
function;
(3)
Exercise wide latitude in discretionary decision making; and
(4)
Receive only general supervision or direction from higher level
executives, the board of directors, or stockholders of the organization.
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."
2.
The
Request For Evidence (RFE) for an EB1 Multinational Executive or
Manager Petition
The
EB-1C immigrant classification applies to individuals who worked in a
managerial or executive capacity abroad for at least one year for a
firm, corporation, other legal entity, or its subsidiary or affiliate,
in a managerial or executive capacity. If the beneficiary is outside
the United States, then the one year of qualifying employment must be
within the three years prior to filing the petition. If the beneficiary
is already in the United States working for the same employer, or a
subsidiary or affiliate of the firm or corporation or other legal
entity for which the beneficiary worked aboard, then the one year of
qualifying employment must be within the three years prior to the
beneficiary’s entry as a nonimmigrant.
An
person who primarily performs the tasks necessary to produce a product,
or to provide services, is not considered to be employed in a
managerial or executive capacity. Operational tasks such as to develop,
design, market, and sell the employer's products do not qualify as
managerial or executive duties neither. Other relevant factors
considered by USCIS when making the decision are the nature of the
business of the employer, and the number of employees employed by
the employer.
The
requirements for multinational executives or managers are similar to
the requirements for L-1 nonimmigrant visa, with the exception that
"specialized knowledge” is not required under EB1. Thus, in
the
EB-1C petition, if the beneficiary entered the U.S. with L-1A visa,
then the person may generally qualify for EB1 Green Card petition
through the multinational executives or managers category.
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.
Some petitioners may even
receive the Notice of Intent to Deny (NOID) from USCIS for their EB1
Multinational Executive or Manager Petitions. The Notice of Intent to
Deny
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.
3. Simply Presenting EB-1C
Related Evidence to USCIS Is Not Enough
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.
After the
USCIS Form I-140 - Petition for an Immigrant Worker submission, it is
not very rare that the petitioner receives a Request
For Evidence (RFE) notice from an USCIS Service
Center. In some occasional situations, a few petitioners may receive a
letter of Intent to Deny (ITD).
The possibility that an EB-1C petition may get RFE changes from one
USCIS Service Center to another USCIS Service Center.
For EB-1C
Green Card application, the burden of proving eligibility for the
benefit sought remains entirely on the petitioner, and the petitioner
has to meet that burden. When your EB-1C Green Card petition has been
poorly documented, you may get a notice of unfavorable decision from
the USCIS, a written statement of the reasons for the negative outcome,
and an explanation of how to appeal.
4.
Most Common Reason of EB-1C Petition Denial
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.
4) the beneficiary failed to establish that he or she have worked for the foreign company for at least 1 year continuously within the last 3 years prior to filing the EB-1C petition
Thus,
the 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.
The
EB-1C immigrant petition with Form I-140 is filed with USCIS. If the
manager or executive is already in the United States in a valid
nonimmigrant status such as L-1A, Form I-485 may be concurrently filed
with USCIS if visas are available. The EB-1C immigrant petition
beneficiary should have worked for the foreign company for at least 1
year continuously within the last 3 years prior to filing the EB-1C
petition
To qualify for an EB-1C Green Card application, the EB-1C petition
beneficiary must have worked for the foreign company full-time for 1
continuous year, prior to filing the EB-1C petition.
1) If the EB-1C petition beneficiary is currently
working for the U.S. company petitioner, then the beneficiary must have
worked for the foreign company for 1 continuous year within the
preceding 3 years prior to beginning their work for the U.S. company.
2) If the EB-1C petition beneficiary is not
currently working for the U.S. company petitioner, then the beneficiary
must have worked for the foreign company for 1 continuous year within
the 3 years preceding the date the EB-1C petition is filed.
5.
Examples of Request For Evidence for EB-1C Petitions
RFE Case One:
After
review of the EB-1C petition, the USCIS adjudicator issued a Request
For Evidence (RFE) notice, instructing the petitioner to provide its
federal tax return along with an IRS Form W-2, wage and tax statement,
for the beneficiary and every other employee of the petitioner.
The
USCIS adjudicator also asked the petitioner to provide an
organizational chart illustrating its corporate hierarchy and the
beneficiary's position in relation to the other employees.
Additionally, the adjudicator instructed the petitioner to attach brief
job descriptions and educational levels for the beneficiary's direct
subordinates.
RFE Case Two:
Upon
review, the USCIS adjudicator informed the petitioner that
insufficient evidence had been submitted in support of the Form 1-140.
Accordingly, the adjudicator issued a request for additional
evidence (RFE) instructing the petitioner to provide a supplemental
description of the beneficiary's foreign and proposed
employment.
The
petitioner was asked to describe the beneficiary's job duties in both
positions in detail, specifying the actual daily tasks and the
percentage of time abroad and in the U.S. position that would be
attributed to each of the enumerated tasks. The petitioner was also
instructed to provide an organizational chart for each entity clearly
depicting each entity's staffing hierarchy.
RFE Case Three:
After
review of the EB-1C petition, the USCIS adjudicator issued the Request
For Evidence (RFE) notice. The adjudicator instructed the petitioner to
provide a description of the beneficiary's proposed job duties in much
greater detail than what was provided in the initial support letter.
The petitioner was instructed to list the specific daily tasks that
were involved in the completion of the duties listed in the support
letter, accompanied by an estimate of the percentage of time that would
be dedicated to each enumerated task.
Additionally,
the
adjudicator focused on the petitioner's claim that it had a facility
that was operating at the time the Form 1-140 was filed. The director
asked the petitioner to provide additional information, including the
facility's hours of operation and an employee roster and schedule
indicating which employees were scheduled to work at the facility
during a two-week period.
RFE Case Four:
In
another EB-1C petition case, the petitioner submitted a letter which
included a brief list of the beneficiary's key responsibilities in his
proposed position with the U.S. entity. In the letter, the petitioner
provided a list of the names and position titles for the four
employees, not including the beneficiary, whom the petitioner claimed
to be employed at the time of filing. The list included two business
development managers, an office and compliance manager, and a vice
president/venture capital special opportunities manager.
After
reviewing the case, the USCIS adjudicator issued a Request for
Additional Evidence (RFE) instructing the petitioner to provide a
description of the beneficiary's proposed job duties in much greater
detail than what was provided in the initial support letter. The
petitioner was expressly instructed to list the specific daily tasks
that were involved in the completion of the duties listed in the
support letter, accompanied by an estimate of the percentage of time
that would be dedicated to each enumerated task.
RFE Case Five:
Q:
My employer filed EB1 Multinational Executive or Manager petition for
me about 4 months ago. Now, I received the Request For Evidence (RFE)
from USCIS, for the quesion of "continue to do business in the US and
abroad". The main quesion in the RFE is that my company abroad is not
continue to do business, because of business problem in my home
country. Another question is that my employer in the US in not "doing
business for at least 1 year at the time of filing of the EB1
Multinational Executive or Manager petition". Please help for the RFE
requests.
A: For EB1
Multinational Executive or Manager petition, doing business means the
regular, systematic, and continuous provision of goods or services or
both by a qualifying organization. Doing business does not include the
mere presence of an agent or office of the qualifying organization in
the United States and abroad.
Both the U.S. employer and at least one qualifying organization abroad
should continue to do business up until the time of visa issuance or
adjustment of status. If the beneficiary’s foreign
employer’s operations abroad cease entirely, for example, the
company goes out of business or relocates completely to the United
States before the time of visa issuance or adjustment of status, the
beneficiary is no longer be eligible for classification as a EB1
multinational executive or manager.
The U.S. employer should have been actively engaged in doing business
for at least 1 year at the time of filing of the EB1 Multinational
Executive or Manager petition. Therefore, a U.S. organization may have
a legal existence in the United States for more than 1 year, but if it
has not engaged in the continuous provision of goods and services for
at least 1 year, the organization is ineligible to file petitions for
multinational executives or managers.
6.
The Emphasized Requirements for EB-1C Green Card Petition and Its RFE
To reply an
USCIS issued Request For Evidence, you should know what are the USCIS
requirements for EB-1C Green Card petition. To qualify for the EB-1
Multinational Manager or Executive Green Card, an alien applicant must
prove all of the following:
1)
There must be a U.S. company or
organization that is active and conducts regular and systematic
operations
A
U.S. company or organization must be established for at least one year
and must be active. Its operations must occur on a regular, ongoing
basis. Applicants must provide evidence of activity, such as the
business registration, lease or deed for business premises,
occupational license, photographs of the business premises and
operations, proof that the business has employees (such payroll tax
records), advertising, receipts for business expenses, invoices,
contracts, and recent financial information (such as balance sheets,
financial statements, company income tax return, and recent bank
statements for the company).
2) There must
be a company or organization
located outside of the U.S. that is active and conducts regular and
systematic operations
The
applicant must provide evidence that a company or organization located
outside the U.S. is currently active and conducts business on a
regular, ongoing basis. This foreign company or organization must
continue to be active for the duration of the applicant's EB1
application. Once the Green Card is approved, it does not matter if the
foreign employer is no longer active.
3) The U.S.
Employer and the Foreign Employer
must be related entities
To be "related entities,” the U.S. employer and the foreign
employer must be affiliates, or one should be the subsidiary of the
other. To qualify as affiliates, the same individual or groups of
individuals must own a controlling interest (at least 50%) in both the
U.S. employer and the foreign employer. To qualify as a subsidiary, the
foreign employer must own the U.S. employer or vice versa. Evidence
must be provided to show who owns the U.S. employer and the foreign
employer, such as U.S. and foreign company income tax returns and stock
certificates.
4)
The alien applicant must have worked for
the foreign employer for at least 1 full year as an executive or manager
The alien applicant must prove full time employment by foreign employer
for at least one continuous year. The alien applicant should have
received some form of compensation during the year of employment
abroad. Company payroll records or tax forms must be provided as
evidence of employment. The applicant must also prove that he or she
worked as an executive, or manager-level employee. These terms are
complicated, but are extremely important.
5)
The alien applicant must work for the
U.S. employer as an executive or manager NOW and AFTER the Green Card
is approved
The alien applicant must show that he or she currently works as an
executive or management-level employee. The easiest way to qualify as
an executive or as a manager is to show that the applicant supervises
one or more professional-level workers, or supervise some supervisors,
who in turn supervises one or more regular workers.
The USCIS likes to deny EB1 Multinational Manager or Executive Green
Card applications if it believes that the alien applicant is not a
manager or executive, but instead is a "front-line
supervisor” (someone involved in regular operations who
supervises non-professional workers). For the same reason, problems
also can occur if U.S. employer has no employees, or the company is
very small. USCIS often asks who provides the goods and services
offered by the company, and it should not be the alien
beneficiary.
Also,
the alien applicant must fill a senior position within the company or
organization. The applicant should provide evidence that he or she is
qualified to work in the position offered. This includes a resume,
relevant diplomas and reference letters from prior employers.
6)
The U.S. employer must prove that it has the
"ability to pay” the alien applicant at the time the Green
Card application is filed, AND at the time the application is approved
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.
The U.S. employer must provide its tax
return at the time the Green
Card application is filed. It may also have to provide its tax return
later, while the application is being processed. The tax return must
show that either the U.S. employer's net income (profit) or net assets
are greater than the salary offered to the alien applicant. In the
alternative, the U.S. employer can provide evidence that the applicant
is already on its payroll, and already receives the wage offered in the
Green Card application.
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.
7)
Petitioner must establish eligibility at the time of filing
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.
7.
The EB-1C
Multinational Manager or Executive Petition and the Beneficiary's Job Responsibilities
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.
EB-1C
Petition RFE Case One: in this case, the petitioner claim "30%
of the alien beneficiary's time would be spent establishing and
executing an operating plan, which would include assessing company
expenditures and determining fund allocation." The USCIS
adjudicators believe that these statements generally convey the fact
that the alien beneficiary would be charged with broad discretionary
authority over all business matters, they fail to convey a meaningful
understanding of the specific tasks the beneficiary would perform to
ensure that these broad business objectives are met. Therefore,
reciting the beneficiary's vague job responsibilities or broadly-cast
business objectives is not sufficient; the regulations require a
detailed description of the beneficiary's daily job duties.
EB-1C
Petition RFE Case Two, in this case, the
petitioner stresses the alien beneficiary's "discretionary
authority in expanding the business by developing new markets."
The USCIS adjudicators believe that the alien beneficiary's
discretionary authority is also not a determining factor, much like the
single factor of the beneficiary's top placement within the
petitioner's hierarchy. Rather, alien beneficiary's authority must be
considered within the context of the specific tasks the beneficiary
would perform on a daily basis.
8.
A Summary of USCIS' Requirements for EB-1C in RFE Notices
For many
EB-1C RFE requests, USCIS wants to make sure the beneficiary can meet
the basic requirements for obtaining EB-1C Green Card:
In many RFE
requests, USCIS also wants to make sure the petitioner can meet the
basic requirements for sponsoring the EB-1C Green Card:
9.
The
Requirement for Request For Evidence Response
The Request
For Evidence
notice means that the petition documentation submitted is not
sufficient to warrant favorable consideration of your petition.
Your response must be received in the USCIS Service Center by the date
indicated
at the RFE notice.
Your case is
being held in the USCIS
Service Center pending your response. Within this period you may:
1)
Submit all of the evidence requested;
2)
Submit some or none of the evidence requested and ask for a decision
based upon the record; or
3)
Withdrew the application or petition. (It is noted if you request the
application or petition be withdrawn, the filing fee cannot be
refunded.)
You
must submit all of the evidence at one time. Submission of only part of
the evidence requested will be considered a request for a decision
based on the record. No extension of the period allowed to submit
evidence will be granted. If the evidence submitted does not establish
that your case was approvable at the time it was filed, it can be
denied by USCIS.
-
If
you submit a document in any language other than English, it must be
accompanied by a full complete English translation. The translator must
certify that the translation is accurate and he or she is competent to
translate. Note: You must submit the requested foreign language
document along with the translation.
USCIS
Service Center also requires that the RFE notice letter should be
mailed back and placed on top of your response: "Place
this entire letter on top of your response. Submission of evidence
without this letter will delay processing of your case and may result
in a denial. Please use the enclosed envelop to mail the additional
evidence requested back to this office."
10.
Get Help for Your RFE Response, and Eventually Obtain Your Green Card
Approval in EB1 Multinational Executive or Manager Category
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 EB-1C 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 (EB-1C)" 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.
11.
What
You Could Do If the EB1 Multinational Executive or Manager Petition
Was Denied by USCIS after a Response the
Request For Evidence Notice
If
your
EB-1C petition is
denied by USCIS after your response the Request For Evidence notice,
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.
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.
We
provide Complete Do-It-Yourself Package for EB-1A green card
application,
which includes all knowledge you need and step-by-step procedures of
EB-1A
application, and it has helped many people get their green cards, and
it will
definitely help your EB-1A application also. Please visit
http://www.greencardapply.com/ea.htm
and http://www.greencardapply.com/ea/eb1a-package.htm
for more information about
EB-1Aapplication.
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. Please
visit http://www.greencardapply.com/niw.htm
and
http://www.greencardapply.com/niw/niw_package.htm
for more information
about NIW application.
12.
The Motion to Reopen or Motion to Reconsider after Form
I-140 Immigrant Visa Application Denial
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.
13. An Example of Request For Evidence for
an EB1 Multinational Executive or Manager Petition
The
following is an example of requests from a Request For Evidence for an
EB1 Multinational Executive or Manager Petition:
REQUEST FOR EVIDENCE
The
documentation submitted is not sufficient to warrant favorable
consideration of your petition.
See
Letter for Details
Your
response must be received in the office by <Date>
Your
case is being held in this office pending your response. Within this
period you may:
1. Submit all of the evidence requested;
2. Submit some or none of the evidence
requested and ask for a decision based upon the record; or
3.
Withdrew the application or petition. (It is noted if you request the
application or petition be withdrawn, the filing fee cannot be
refunded.)
You
must submit all of the evidence at one time. Submission of only part of
the evidence requested will be considered a request for a decision
based on the record. No extension of the period allowed to submit
evidence will be granted. If the evidence submitted does not establish
that your case was approvable at the time it was filed, it can be
denied.
If
you do not respond to this request within the time allowed, your case
will be considered abandoned and denied. Evidence received in this
office after the due date may not be considered.
If
you submit a document in any language other than English, it must be
accompanied by a full complete English
translation. The translator must certify
that the translation is accurate and he or she is competent to
translate. Note: You must submit the requested foreign language
document along with the translation.
You
intend to employ the beneficiary as a Manager, Product Application.
The
E13 immigrant classification applies to individuals who worked in a
managerial or executive capacity abroad for at least one year for a
firm, corporation, other legal entity, or its subsidiary or affiliate,
in a managerial or executive capacity. If the beneficiary is outside
the United States, then the one year of qualifying employment must be
within the three years prior to filing the petition. If the beneficiary
is already in the United States working for the same employer, or a
subsidiary or affiliate of the firm or corporation or other legal
entity for which the beneficiary worked aboard, then the one year of
qualifying employment must be within the three years prior to the
beneficiary’s entry as a nonimmigrant.
You
must show that you are the same employer or a subsidiary or affiliate
of the firm or corporation or other legal entity which employed the
beneficiary aboard. The evidence you submitted is insufficient.
Petitioner failed to provide evidence establishing the qualifying
relationship between the foreign business entity and the U.S.
petitioner. Please submit the following:
-
An
annual report of your corporation which lists all affiliates,
subsidiaries, branch offices, and percentages of ownership (please
highlight and tab the relevant sections.)
Please
note that if your organization and the beneficiary’s former
employer aboard are not directly related, documentation must be
provided for each intermediary company as well.
Evidence
must show that the beneficiary was employed aboard in a managerial or
executive capacity for at least one year in the relevant three-year
period:
-
If
the beneficiary is already in the United States and working for the
same employer or a subsidiary or affiliate of the firm or corporation
or other legal entity for which the beneficiary was employed aboard,
then the one year of qualifying employment must be within the three
years prior to the beneficiary’s entry as a nonimmigrant.
In
addition, it must be established that the beneficiary’s
current
position in the United States is managerial or executive in nature.
The
evidence submitted is not sufficient. The duties as provided for both
the foreign business entity and the U.S. business entity are brief in
nature and do not justify the position held or to be held as a
managerial and/or executive position. Therefore, please submit the
following:
1)
Letters from authorized officials of the foreign organization and the
petitioner, clearly describing the beneficiary’s actual job
duties. The letter must include:
-
A
list of employer (and individual contractors) in the
beneficiary’s immediate division. department, or team.
Include a
summary or their job duties, educational level, salary, and whether
they work full or part-time; and
-
A
description of both the foreign employer’s and the
petitioner’s products and services, including the exact
productive and administrative tasks necessary to produce the products
and services. Explain who performs those tasks, and tasks related to
goal-setting, policy-making, and discretionary decision-making.
2)
Organizational charts or diagrams that correspond with the
beneficiary’s employment aboard and in the United States
which:
Place
this entire letter on top of your response. Submission of evidence
without this letter will delay processing of your case and may result
in a denial. Please use the enclosed envelop to mail the additional
evidence requested back to this office.
Sincerely
Mark J.
Hazuda
Director
Office: 0339
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Green Card Application
Service, www.greencardapply.com