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How to Prepare a Successful RFE  Response for Your L-1A / L-1B Visa Application or Extension

1. USCIS Adjudicator's Evaluation for L1 Visa Application and the Request For Evidence (RFE) Simply presenting evidence which relates to the L-1 visa application requirements does not necessarily mean that the L-1 visa application or L1 status extension will 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 the L-1 visa application or L-1 status extension, the additional evidence may be requested from the petitioner, or it is called Request For Evidence (RFE). An USCIS adjudicator may issue a Request For Evidence (RFE) on L-1 visa application 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 L-1 visa application. 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 30 - 60 days, but may take longer for some cases. 2. The Emphasized Requirements for L1 Visa Petition, and the Request For Evidence (RFE) or Notice of Intent to Deny (NOID)  To reply an USCIS issued Request For Evidence, you should know what are the USCIS requirements for L1 visa petition. Most L-1A petitions have difficulty on the requirement of L-1A regulation: a person who has worked abroad for one continuous year within the preceding three years in an executive or managerial capacity for a qualifying, related business entity. The first requirement of L1 is that the intra-company transferee must have been employed in a qualifying company abroad in a managerial, executive capacity, or as a person with specialized knowledge, for at least one year within the past three years. The regulatory authority for the L1 visa is found in 8 C.F.R. Section 214.2(1). These regulations state that an alien who is eligible to receive an L1 intra-company transfer visa must meet the statutory requirements of the Immigration and Nationality Acts, which define a qualified alien as:  a person who has worked abroad for one continuous year within the preceding three years in an executive, managerial, or specialized knowledge capacity for a qualifying, related business entity and who is being transferred temporarily to work in the United States to work in a executive, managerial, or specialized knowledge capacity for a qualifying related business entity. Three positions, a manager, an executive, and a person with specialized knowledge, are considered employable by the USCIS, on the condition that the U.S. employer, which functions as the petitioner, meet the obligations of a qualifying organization. By working for a qualifying organization abroad for an entire year during the preceding three years, an alien can apply for a L1 intra-company transfer visa. An L-1 visa application case may be denied if it is clearly not approvable. These are cases where basic regulatory requirements are missing. This includes cases where an applicant is categorically ineligible to receive a L-1 visa. USCIS also recognized that sometimes the adjudicators request full range of information when only a small amount is needed to make a final decision, so it wastes examination resources through the review of unnecessary, duplicative, or irrelevant documents. A 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 30 - 60 days, but may take longer. 3. Make Sure the Beneficiary Meet the Basic Requirements for Obtaining L1 Visa 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.  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. 4. The Additional Evidence to Prove the Managerial Capacity for L1A Visa Application The definition of “managerial capacity” and the implementing regulation allow for both “personnel managers” and “function managers.” Personnel managers must primarily supervise and control the work of other supervisory, professional, or managerial employees, whereas function managers must primarily manage an essential function within the organization. To reply the USCIS' Request For Evidence (RFE) request for managerial capacity, you should submit the additional evidence to prove that the beneficiary’s job duties will be primarily managerial in nature. USCIS adjudicating officer will consider the totality of the record and weigh all relevant factors, including: 1) the nature and scope of the petitioner’s business; 2) the petitioner’s organizational structure, staffing levels, and the beneficiary’s position within the petitioner’s organization; 3) the scope of the beneficiary’s authority; 4) the work performed by other staff within the petitioner’s organization, including whether those employees relieve the beneficiary from performing operational and administrative duties; and 5) any other factors that will contribute to understanding a beneficiary’s actual duties and role in the business. 5. The Challenges for L-1A Visa Application and Extension The L-1A visa is one of the most popular vehicles by which the owners of foreign businesses can obtain permanent status in the United States by expanding operations to the United States. The process is carried out in three steps: First, the initial L-1A visa is issued for a period of one year to set up operations of the new U.S. branch; Second, the L-1A visa must be renewed based in part on the first-year record of the U.S. branch; Third, once renewed, for an additional 2 years, the L-1A visa holder may apply for permanent residency with the support of the U.S. branch. 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 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; 6. The Request For Evidence (RFE) for L-1A Visa Application or Extension Obtaining approvals for L-1A petitions 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-1A RFEs challenge whether the L-1A employee will be working in a managerial, executive, or specialized 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. 7. The Specialized Knowledge Required by USCIS Regulation for L-1B The issue for L-1B visa application or extension is whether the petitioner has established that the beneficiary's position in the United States will involve specialized knowledge as required by the regulation. Section 214(c)(2)(B) of the Immigration Act provides the following: “For purposes of section 101(a)(15)(L), an alien is considered to be serving in a capacity involving specialized knowledge with respect to a company, if the alien has special knowledge of the company product and its application in international markets, or has an advanced level of knowledge of processes and procedures of the company.” Furthermore, the regulation defined specialized knowledge as: “Special knowledge possessed by an individual of the petitioning organization's product, service, research, equipment, techniques, management, or other interests and its application in international markets, or an advanced level of knowledge, or expertise in the organization's processes or procedures.” The petitioners requesting L-1B classification for an employee are usually faced with having to re-establish that the beneficiary possesses “specialized knowledge”, and the employee is coming to the United States to continue to render services requiring that specialized knowledge. A beneficiary is considered to be serving in a capacity involving specialized knowledge if he or she has “a special knowledge of the company product and its application in international markets, or has an advanced level of knowledge of processes and procedures of the company. The regulations elaborate on this definition 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. 8. The Request For Evidence (RFE) for L-1B Visa Application or Extension 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." 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. 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. 9. The Organizational Chart for L-1A Visa Application and L-1A Visa Extension 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. 10. 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 do not respond to the RFE request within the time allowed, your case will be considered abandoned and denied. Evidence received in USCIS 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. 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." 11. How to Organize the Evidence Accompanied with the L-1 Visa Request For Evidence Response Follow the tips below for how to organize the evidence accompanied with the L-1 visa Request For Evidence response: 1) Provide all required documentation and evidence with the L-1 visa RFE. L-1 visa application may be denied in the instances where the required evidence described in the Request For Evidence notice are not initially provided. If providing photocopies of documents, provide clear legible copies. 2) All foreign language documents must be submitted with a corresponding English translation. The English translation must be certified by a translator who is competent to translate and must verify in writing that “the translation is true and accurate to the best of the translator's abilities.“ It is helpful if the English translation is stapled to the foreign language document. 3) If documenting the alien's publications or citations of the alien beneficiary's work, highlight the alien's name in the relevant articles. It is not necessary to send the full copy of document, or paper written by the alien beneficiary, or one in which the alien beneficiary's work has been cited. Include the title page and the portions that cite the alien's work.  4) Tab and label the evidentiary exhibits at the bottom of the first page of each exhibit, and provide a list of the evidentiary exhibits and the eligibility criteria that each exhibit is submitted to establish for petitions supported by a substantial amount of documentation. An exhibit that is being provided to meet multiple eligibility criteria should be so identified in the exhibit list. 12. Get Help for Your RFE Response, and Eventually Obtain Your L-1A Visa or L-1B Visa The burden of L-1 visa petition approval rests with the petitioner. The petitioner should provide substantial evidence of L-1 visa criteria that the alien could satisfy. If the alien applicant is qualified, then the success depends largely on the way the application is presented to USCIS.  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. 12. An Example of USCIS' Request For Evidence Notice for an L-1A Visa Renew Application The following is an example of USCIS' Request For Evidence notice for an L-1A visa renew application: REQUEST FOR EVIDENCE  The documentation submitted is not sufficient to warrant favorable consideration of your petition/application.  See Attachment for Details.  Your response must be received in this 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. Withdraw the application or petition. (It is noted that if you request that 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 upon 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.   Your response must be received in this office on or before <Date>, otherwise your case will be considered abandoned and denied. Evidence received in this office after the due date may not be considered. PLACE THIS 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 ENVELOPE TO MAIL ADDITIONAL EVIDENCE REQUEST BACK TO THIS OFFICE.  Sincerely,       XXXXXXXX, Director California Service Center   Officer #109 ATTACHMENT   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 that is primarily manager or executive with the title of Managing Director.  Simply making titles that are normally associated with manager or executives positions are not sufficient for the classification. The actual scope, capacity and function of both the beneficiary and the business must be reviewed. 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... (1). The information submitted does not describe the scope and duties of the position held by the beneficiary in a qualifying capacity. Submit evidence to establish that the beneficiary has been employed abroad, by a qualifying organization, in a managerial or executive capacity for one continuous year of full-time employment within the three years prior to the filing date of the petition. The documents to submit should include, but are not limited to: a) The beneficiary's last annual tax return, and if applicable, tax withholding statement reflecting the employer. b) Copies of payroll documents of the business entity reflecting the beneficiary's period of employment and salary. c) Other unequivocal evidence establishing the foreign employment by the beneficiary. (2) Submit additional evidence showing the management structure and personnel structure of your entity outside the United States, to assist us in determining whether the beneficiary was employed in a qualifying managerial or executive capacity abroad. a) How many subordinate supervisors are under the beneficiary's management? b) What are the job titles and job duties of the employees managed? c) What executive and technical skills are required to perform the overseas duties? d) How much of the time spent by the beneficiary is allotted to executive duties and how much to other non-executive functions? e) What degree of discretionary authority in day-to-day operations does the beneficiary have in the overseas job? f)  Who will operate the business in absence of the beneficiary? (3).The present information submitted does not demonstrate that the beneficiary will be functioning at a primarily manager or executive level in accordance with the regulation. Submit additional evidence showing the management structure and personnel structure of your United States entity, to assist us in determining whether the beneficiary is or will be employed in a qualifying managerial or executive capacity. 1) How many subordinate supervisors are or will be under the beneficiary's management? 2) What are the job titles and job duties of those employees? 3) What executive/managerial and technical skills are required to perform the duties in the United States? 4) How much of the time spent by the beneficiary is or will be allotted to executive/managerial duties? and how much to other non-executive functions? (4) Submit an organizational chart depicting all the management for the foreign entity, as well as complete position descriptions for all of the foreign entity's management employees. Please be certain to submit a description of the manager and executive staff of the United States office, and what degree of discretionary authority in day-to-day operations does or will the beneficiary have in the United States position?

 

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