Requests for Evidence for H1-B and L-1 Nonimmigrant U.S. Visas
On 18 April 2017, President Donald Trump issued the Executive Order “Buy American and Hire American,” which directed the U.S. Department of Homeland Security to devise policies to limit the issuance of H-1B visas to only the most skilled or highest paid petition beneficiaries. As a direct result of that Executive Order, U.S. Citizenship and Immigration Services (USCIS) started to increase both the requests for evidence (RFEs) it issued and its denials for nonimmigrant petitions, specifically H-1B and L-1 petitions. When USCIS challenges that a prima facie case for eligibility of the benefit has not been met, it may issue an RFE to request missing initial or additional evidence from applicants or petitioners who filed for immigration benefits. Applicants and petitioners are normally allowed eighty-four days to respond to the RFE before USCIS makes a final decision on the case.
According to a ten-page report from the National Foundation for American Policy (NFAP) released in July 2018, the number of RFEs for H-1B cases in the fourth quarter of FY 2017 almost equaled the total number of those issued by USCIS adjudicators for the first three quarters of FY 2017 combined (63,184 vs. 63,599). Therefore, for FY 2017, USCIS issued applicants and petitioners more than 126,000 RFEs, yet the total number of H-1B petitions rose by less than 3% in the same period. The denial rate for H-1B cases increased by 41% from the third to the fourth quarter of FY 2017, rising from a denial rate of 15.9% in the third quarter to 22.4% in the fourth quarter. Similarly, RFE rates for L-1A petitions increased from 34.7% in the first quarter to 39.6% in the fourth quarter. Overall, L-1A denial rates increased by 67%, from 12.8% to 21.4% between the first quarter and the fourth quarter of FY 2017.
Another contributing factor to the spike in RFEs was USCIS’s Policy Memorandum issued on 23 October 2017, directing adjudicators to review nonimmigrant extension petitions with the same scrutiny as an initial petition. This new memo rescinded USCIS’s 2004 Policy Memorandum of giving deference to prior determinations of eligibility when there were no material changes in employment. It is now common for USCIS to issue RFEs for H-1B and L-1 extensions based on initial petitions that were previously approved without issue. The issuance of these RFEs grinds the adjudication process to a halt and causes significant delays for companies that need a prospective employee’s services immediately, or that need a current H-1B or L-1 employee to continue working in that status. The RFEs, often consisting of multiple pages, are also burdensome, complex, and sometimes lacking in common sense, thereby creating additional expense for the petitioner and the foreign national beneficiary in retaining legal counsel for the additional work in drafting a legal memorandum in response.
Common Issues in USCIS’s Requests for Evidence in the H-1B Context
Level 1 Wages – Entry Level
A common issue raised in USCIS’s RFEs in the H-1B context since 18 April 2017 is with regard to the use of Level 1 wages. In its RFEs, USCIS claims that a Level 1 wage is not appropriate for a specialty occupation given the complexity of the job duties and/or that the position is not a specialty occupation because the Level 1 wage indicates that the position is entry level.
When applying for H-1B classification, employers must attest to the Department of Labor (DOL) that they will pay wages to the H-1B nonimmigrant workers that are at least equal to the actual wage paid by the employer to other workers with similar experience and qualifications for the job in question, or the prevailing wage for the occupation in the area of intended employment, whichever is greater. For purposes of establishing the prevailing wage, Congress mandated that government wage surveys set forth at least four wage levels. The DOL Prevailing Wage Determination Policy Guidance provides step-by-step procedures and worksheets to guide employers through the correct mathematical calculation to arrive at the appropriate wage level (Levels 1-4) for a position. More specifically, DOL states:
“All prevailing wage determinations shall start with an entry level wage and progress to a wage that is commensurate with that of a qualified, experienced, or fully competent worker only after considering the experience, education, and skill requirements of an employer’s job description (opportunity).”
Practitioners should utilize the following strategies in responding to USCIS’s RFEs with regard to Level 1 wages. When USCIS claims that a Level 1 wage is inappropriate given the complexity of the job duties, practitioners should direct the USCIS adjudicator to the statutory language and argue that DOL’s analysis of the relevant factors for determining a prevailing wage and the corresponding wage level are “the nature of the job offer, the area of intended employment, and jobs duties for workers that are similarly employed.” There is no analysis in the statute with regard to the complexity of the job duties for the position offered, only with the requirements for the position (i.e., experience, education, and skills) and the geographical area. Therefore, wage levels are not an appropriate indicator of the complexity of the job duties to determine whether the position qualifies as a specialty occupation. Furthermore, DOL’s four-tier wage system was intended to determine wage structures, not to determine whether a position qualifies as a specialty occupation for H-1B purposes. Practitioners should also argue that USCIS adjudicators cannot blindly rely on wage levels to determine if a profession qualifies as a specialty occupation. For some positions, such as doctors, lawyers, engineers, and other professional occupations, underlying degrees (bachelor’s, master’s, etc.) and many years of study in the specialty are the minimum requirements for entry into these professions. For example, an attorney who recently graduated from law school and passed the Bar exam, but without much professional experience, most likely would be paid a Level 1 entry-level wage. That fact is irrelevant in determining whether an attorney position would qualify as a specialty occupation. On the other hand, a plumber could be paid a Level 4 wage, the highest wage possible, yet no one would argue that a plumber is a specialty occupation requiring, at a minimum, a bachelor’s degree in a specific field. Therefore, practitioners should argue in their responses that some occupations are inherently specialty occupations, regardless of wage levels.
When a beneficiary does not possess a bachelor’s degree from an accredited university in the United States, USCIS will issue an RFE requesting documentation establishing that the beneficiary’s foreign degree is equivalent to a bachelor’s degree from the United States in his or her field. Practitioners can avoid this issue by preemptively submitting a credentials evaluation of the beneficiary’s foreign degree with the initial submission.
Common Issues in USCIS’s Requests for Evidence in the L-1 Context
Ownership and Control of U.S. Entity
To transfer an employee from a foreign entity to a U.S. entity as an L-1 nonimmigrant, a qualifying relationship must exist between the two entities. Qualifying relationships may occur between branches of the same employer, or amongst parent companies, affiliates, or subsidiaries. To establish this relationship, practitioners must provide evidence of ownership and control by one of these parties over the other. For the purposes of L-1 classification, ownership means the legal possession of an organization, while control means the legal or actual ability to exercise authority or influence over an organization.
A common error that practitioners make in establishing ownership and control in the L-1 context is to simply submit copies of the share certificates for the U.S. and foreign companies. As general evidence of a petitioner’s claimed qualifying relationship, stock certificates alone are not sufficient evidence to determine whether a stockholder maintains ownership and control of a corporate entity. The corporate stock certificate ledger, stock certificate registry, corporate bylaws, and the minutes of relevant annual shareholder meetings must also be examined to determine the total number of shares issued, the exact number issued to the shareholder, and the subsequent percentage ownership and its effect on corporate control. Additionally, a petitioning company must disclose all agreements relating to the voting of shares, the distribution of profit, the management and direction of the subsidiary, and any other factor affecting actual control of the entity.
Generality of Job Duties to Establish Executive or Managerial Capacity
Language now prevalent in many USCIS RFEs is that the submitted description of the beneficiary’s foreign or U.S. position describes only generalized duties and responsibilities, making it impossible for USCIS to determine if the beneficiary’s job duties meet the statutory definition of “executive” or “managerial” capacity. This request is common despite practitioners detailing the beneficiary’s specific duties by percentage of time spent on each. To avoid this issue, practitioners may wish to further break down the beneficiary’s duties on a daily basis by hour (if possible), as well as include expert opinions from renowned professionals or professors in the field who can attest that the job description provided is sufficiently detailed and meets the pertinent statutory definition to qualify for L-1 purposes. The expert opinion, obtainable from credentials evaluations agencies, should include language that the expert either visited the beneficiary’s worksite or spoke to someone at the beneficiary’s place of business and is knowledgeable about the type of industry involved, if possible, to avoid USCIS not giving the opinion any deferential value.22 Expert opinions are valuable tools that practitioners can use to bolster their cases. For example, in a recent case, the submission of an expert opinion was successful in arguing that a beneficiary’s negotiation of contracts with clients and legal representation as president of the company were evidence of executive capacity.
For more information about the employment based H1-B Visa and L-1 Visa for Executive, Manager or Specialized Knowledge Employee or to speak to our experienced immigration lawyers, contact us now.