Avoid L-1B RFEs Through Careful Case Preparation
by Chad Graham
In this era of the L-1B RFE, which really began in earnest more than three years ago and has continued through the present time, it is critical that attorneys prepare strong cases up front to avoid the dreaded USCIS boilerplate RFEs. Some initially posited that this heightened scrutiny was due to limited H-1B numbers. However, even though H-1Bs have been more plentiful over the past couple of years, the complex and burdensome RFEs for L-1Bs have continued to spew forth from the California and Vermont service centers.
The recent difficulty in filing an RFE-free L-1B petition is compounded by the dearth of clear regulatory guidance on the definition of "specialized knowledge." Furthermore, case law, government memoranda, and USCIS policy have presented a moving target over the past few decades. Case law in the 1980s adopted very strict interpretations of "specialized knowledge." For example, it was held that possessing technical or highly specialized positions do not inherently qualify one for specialized knowledge classification. Another case later held that specialized knowledge requires the employee to be a "key person with materially different knowledge and expertise which are critical for performance of the job duties; which are critical to, and relate exclusively to, the proprietary interest; and which are protected from disclosure through patent, copyright, or company policy.
Meanwhile, INS promulgated a definition of specialized requiring knowledge possessed by an individual whose advanced level of expertise and proprietary knowledge of the organization's product, service, research, equipment, techniques, management or other interests of the employer not readily exist in the U.S. labor market.
Shortly after this, the government relaxed the standard significantly with the passage of the Immigration Act of 1990, which defined specialized knowledge as special knowledge of a company product and its application in international markets or an advanced level of knowledge of processes and procedures of the company. The relaxed standard was supported by a well-known memorandum issued in 1994 by USCIS's Acting Executive Associate Commissioner, James Puleo. The Puleo memorandum said that specialized knowledge need not be proprietary or unique, but that it must be different or uncommon. The memorandum further stated that specialized knowledge based on knowledge of the company's processes or procedures must be advanced, highly developed, or complex.
In 2002 and 2004, USCIS issued memoranda that supported the Puleo
Benchmarking to Avoid RFEs
RFEs result in case delays, additional costs and loss of time. Knowing the most common issues being raised by USCIS in L-1B RFEs is helpful in preparing more successful cases.
Perhaps the most common issue seen in the boilerplate L-1B RFEs is requests related to specialized knowledge. These typically show up as requests for additional details regarding the beneficiary's proposed U.S. job duties and the job duties performed in the position abroad. To be successful in avoiding this request, it is best to provide very specific details in the initial job description that explains how the beneficiary's knowledge and, therefore, his or her ability to carry out the related job duties, are advanced, highly developed, complex and/or different from those generally found in the industry. The volume of written detail is not the decisive factor. Rather, the key is to clearly delineate how the beneficiary's knowledge is rare in a way that is important to the employer.
Related to this, we have seen requests for specific percentages of time spent in each core duty. Therefore, it makes sense to provide this as part of the job description.
Perhaps the most obnoxious question that arises out of a specialized knowledge inquiry is an explanation of how many workers are similarly employed by the sponsoring organization and detailed descriptions of their training, as well as a description of the positions within the company requiring specialized knowledge. Depending on what the company can provide, a response to this can be extremely burdensome. A listing of the main specialized positions within the company and their corresponding job requisitions should be sufficient to satisfy this request.
Some RFEs ask for an explanation of how the employer's business would be impacted if the beneficiary is not able to assume the U.S. role. Essentially, USCIS seems to be trying to identify whether U.S. workers could be trained for the position and, therefore, would be displaced by approval of the petition. It is a good practice to anticipate this question and make it part of the initial submission.
Aside from specialized knowledge, some of the most common issues raised in RFEs relate to the sponsoring employer, especially for smaller companies. Proving the qualifying relationship between the U.S. office and the office abroad is essential. It appears that USCIS's primary way of verifying the existence of a qualifying relationship is through their Validation Instrument for Business Enterprises (VIBE) tool. VIBE is a web-based application that relies on commercially available information from an independent information provider. If VIBE demonstrates the relationship between the U.S. and foreign entities, the relationship issue should not be raised in an RFE.
To ensure companies and their related entities are properly listed in the VIBE system, the Dun & Bradstreet listing should be up to date. VIBE pulls its information through the independent information provider from Dun & Bradstreet. Updates to Dun & Bradstreet can be done by phone (1.800.234.DUNS) or online at www.dnb.com in the "Customer Resources" section. Once the new data is verified through Dun & Bradstreet's DUNSRIGHT process, new updated information will be available within 72 hours. There is no fee for making updates.
Another common issue for smaller companies sponsoring L-1B cases relates to the company's existence and viability. In response to claims of rampant fraud in the L-1 program, Congress passed the L-1 Visa Reform Act of 2004, which, among other things, mandated that a $500 fraud prevention fee be included with all L-1 petitions. In relation to this, USCIS may request information about the sponsoring employer. Some of the specific requests that arise regularly are DE-6 quarterly wage reports, business licenses, incorporation documents, audited financials, a company-wide organization chart, a lease agreement, and even photographs of the premises. For smaller companies and first-time L-1 sponsors, practitioners should provide some or all of this documentation in the initial filing.
ConclusionThe holy grail of L-1B petitions filed with USCIS is receiving an RFE-free approval. With the higher level of scrutiny being applied, this can seem difficult. Proper case strategy, as well as taking additional time to collect the right information and documents up front can significantly reduce the ratio of RFEs for such cases. Avoiding the delays, costs, and time burdens that accompany RFEs is critical in this age of international mobility. Firms that reduce their RFE rates provide a higher level of service for their clients.
1Matter of Colley, 18 I&N Dec. 117 (Comm., 1981)
38 CFR §214.2(I)(1)(ii)(D)(1987). It is this author's opinion that this is why we continue to see irrelevant questions in RFE boilerplate asking why the employer is not able to hire U.S. talent for the position.
5Memorandum, Interpretation of Specialized Knowledge, Fujie Ohata, Dir. Service Center Operations, USCIS (Dec. 20, 2002); Memorandum, Interpretation of Specialized Knowledge for Chefs and Specialty Cooks Seeking L-1B Status, Fujie Ohata, Dir. Service Center Operations, USCIS (Sept. 4, 2004)
6It should be noted that, under the regulations, it is only required to demonstrate either knowledge of (1) company products and their application in international markets a way not generally found in the industry, OR (2) company processes and procedures that are advanced, complex or highly developed. However, if possible, it is this author's opinion that demonstrating both makes the petition stronger and less likely to receive an RFE.
Chad Graham earned his law degree from the University of Iowa, graduating with highest honors for service, and worked as Managing Editor for the law journal, Transnational Law & Contemporary Problems. Chad Graham’s practice encompasses all aspects of business immigration, including mergers and acquisitions, E-Verify compliance, non-immigrant visas, immigrant visas, I-9s and E-Verify, consular practice, and naturalization
The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.