By: Thomas J. Joy, Esq.
The recent downturn in the US economy has resulted in an upturn in the scrutiny given to H-1B, L-1A and L-1B visa petitions by adjudicators at the USCIS service centers. Many cases filed and approved in the same format and with the same supporting evidence for years are now being challenged with a Request For Evidence (RFE) and even denied. Even if the case is eventually approved, the RFE causes additional work, expense, delay and stress for all concerned. The purpose of this article is to point out certain areas of closer scrutiny regarding each of these visas and to suggest possible solutions to address and even avoid the dreaded RFE.

H-1B SPECIALTY OCCUPATIONS

A H-1B specialty occupation means an occupation which requires theoretical and practical application of a body of highly specialized knowledge in the sciences, professions or the arts, and which requires the attainment of a bachelor’s degree or higher in a specific specialty, or its equivalent, as a minimum for entry into the occupation in the United States. RFE challenges often include insufficient detail in the job description and the employer’s need for such a specialty occupation. Job descriptions should be written with as much technical detail as possible. Often it is useful to incorporate mention of specific course work from the university transcript in order for the adjudicator to see the need for a bachelor’s degree. The typical RFE will require the employer to specify a percentage of time spent on each job duty in order to be better able to determine if the job involves a specialty occupation. Small to medium size employers and startup companies often receive an RFE challenging whether the company really needs a full time staff accountant, market analyst or other position. Documentation of the employer’s products and services along with documentation of the needs of the clients and customers of the employer is useful in order to justify the need for the H-1B employee.

L-1A EXECUTIVES AND MANAGERS

Multinational companies often transfer executive and managerial personnel from their foreign company to a related company (parent, subsidiary, affiliate, branch) in the United States in L-1A status in order to be executives and managers. An executive primarily directs the management, establishes goals and policies, exercises wide latitude in discretionary decision-making and receives only general supervision or direction. A manager primarily manages a part of the company, supervises and controls the work of other supervisory, professional or managerial employees, has authority to hire and fire or recommend those as well as other personnel actions and exercises discretion over the day-to-day operations. RFE challenges often include insufficient detail in the job description. A detailed job description with percentages of time assigned to each job duty is critical for success. In addition, organizational charts showing the personnel above and below the beneficiary with job descriptions and educational backgrounds of each person directly managed by the beneficiary are required. The adjudicator needs this information in order to determine if the beneficiary is primarily performing as an executive or manager by delegating the day-to-day operations to others. For smaller companies and startup companies it is often fatal where the lack of employees managed or supervised leads to a determination that the executive or manager is primarily performing the day-to-day operations of the company and is doing very little managerial or executive job duties.

L-1B SPECIALIZED KNOWLEDGE

As above for executives and managers, multinational companies often transfer specialized knowledge personnel to their related companies in the United States to work in specialized knowledge capacities in L-1B status. Specialized knowledge means special knowledge possessed by an individual of the company’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 company’s processes and procedures. Due to a significant amount of abuse of the L-1B visa, specialized knowledge has become much more difficult to prove and the majority of cases receive an RFE challenging the nature of the knowledge of the beneficiary. In order for an employee to have specialized knowledge, the employee must be compared with the employer’s workforce and must also be compared with the rest of the industry. It is critical to document the specialized nature of the particular employee’s knowledge with independent evidence.

CONCLUSION

Experienced immigration legal counsel tracks items as they appear on each RFE and addresses each item when preparing future cases in an attempt to avoid an RFE on future cases. As a general rule, additional documentation is critical for success. By doing so, it is possible to avoid much of the expense, delay and stress caused by the RFE in these times of much closer scrutiny by USCIS.