In June, the Citizenship and Immigration Services' Ombudsman's office issued its annual report in which they included a chapter on "The Use of Requests for Additional Evidence in L-1 Petitions."1 Essentially a follow-up to a set of recommendations issued in their 2010 annual report, the Ombudsman's 2023 report noted ongoing issues with the USCIS's issuance of Requests for Evidence (RFE) in L-1 petitions and, more specifically, the USCIS adjudicating officers' application of the "preponderance of evidence" standard. While the report's intended audience is clearly within the Agency, it can also provide attorneys and other practitioners with an insightful look into USCIS's current L-1 adjudicative practices.
Background
In its 2010 annual report, the Ombudsman's office provided a study of USCIS's use of requests for evidence (RFE) in the H-1B and L-1 adjudicative processes.2 This study was brought about as a result of stakeholder concerns that RFEs were redundant, overly broad, burdensome and intrusive, used unfounded assumptions, made incorrect references to regulations, and had unnecessary requests to prove alternative bases of eligibility, among other concerns. The Ombudsman made a series of recommendations including: providing new and expanded training to ensure adjudicators understand and apply the "preponderance of the evidence" standard in adjudications; requiring that USCIS adjudicators specify the facts, circumstances, and/or derogatory information necessitating the issuance of an RFE; establishing clear adjudicatory L-1B guidelines through a structure notice and comment process; and implementing a pilot program consisting of 100% supervising review and an internal uniform checklist for adjudicators to complete before the issuance of an RFE.
The 2023 Ombudsman Report
Fast forward 13 years: the Ombudsman report notes that several improvements have been made such as, for example, falling RFE rates for H-1B petitioners. However, many of the same critical concerns persist in the Agency's issuance of RFEs for L-1 cases, which are issued four times as often as H-1B RFEs.3 The Ombudsman's office conducted a randomized review of 20 L-1A and 20 L-1B cases and determined that "21 of the 40 L-1A and L-1B files reviewed involved the issuances of questionable RFEs."4 The office concluded that many USCIS officers were not applying the "preponderance of evidence" standard due to inadequate training. As the report states, "without such standardized training on the application of the preponderance of evidence standard to specific facts in what are relatively complex submissions, unnecessary RFEs can result."5 The office also found that there is "no single training module or period of time" dedicated specifically "to developing expertise in assigning weight to the evidence."6 Furthermore, and despite the April 2021 reinstatement of prior deference for extension cases, some adjudicators were refusing to give deference to a prior USCIS adjudication on the same facts.7 While the Ombudsman's report recognized that USCIS had made important progress in creating standardized templates which has resulted in the issuance of more uniform RFEs, these templates did not substantially reduce the number of unnecessary RFEs and "it does not appear that [the templates] improved the precision and clarity of RFEs."8 Lastly, the Ombudsman report noted that USCIS adjudicators were not making use of all available USCIS systems and that they "do not routinely nor proactively search" for information that is readily available on USCIS or other governmental files, systems, and databases.9
Many of the Ombudsman office's recommendations mirror those in the 2010 report: better training of adjudicators on preponderance of evidence and assigning weight to evidence; regular training on the applicable regulations for L-1 cases, streamline prior deference for extension cases involving no material changes from the original petition and extend deference to Department of State decisions, improve RFE templates, and establish a quality assurance program.
What is an attorney or other practitioner to make of this?
First of all, it is important to note that, despite these ongoing adjudicatory challenges, the Ombudsman report acknowledges that L-1 RFE issuances – while still high compared to H-1B – have been declining, largely as a result of the reinstatement of prior deference: "FY 2022 data shows a marked drop in L-1 RFE rates, down from 52.3 to 36.5 percent... FY 2023 data, while still preliminary, shows that the L-1 RFE rate rose only slightly, from 36.5 to 37.6 percent of completed cases as of the first quarter."10
Nevertheless, we would recommend that L-1 support letters provide a "preponderance of evidence" and a "prior deference" statement so as to remind the USCIS adjudicator of the appropriate standards and regulation governing L-1 petitions and extensions. A good statement will respectfully and clearly cite the appropriate statute or regulation such as in the below example for preponderance of evidence:
The USCIS Policy Manual, Volume 1, Part E, Chapter 4 establishes that the standard of proof in most immigration proceedings is the preponderance of the evidence standard. The USCIS provides the following guidance for this standard: "even if there is some doubt, if the benefit requestor submits relevant, probative, and credible evidence that leads an officer to believe that the claim is 'probably true' or "more likely than not," then the benefit requestor has satisfied the standard of proof." Matter of Chawathe, 25 I&N Dec. 369 (AAO 2010) further establishes that "in adjudicating the application pursuant to the preponderance of the evidence standard, the director must examine each piece of evidence for relevance, probative value, and credibility, both individually and within the context of the totality of the evidence, to determine whether the fact to be proven is probably true."
Attorneys and practitioners should also create their own checklists and templates to ensure that they do not miss any important information that could lead to an RFE. Such information should include establishing the qualifying corporate relationship, proving the Beneficiary's eligibility for L-1 (minimum of one continuous year of employment in qualifying managerial/specialized knowledge position). Below we've provided some guidance on the specific preparation for L-1A and L-1B cases:
L-1A – Executives and Managers
The L-1A nonimmigrant classification enables a U.S. employer to transfer an executive or manager from one of its foreign companies to one of its offices in the United States. As defined by the Code of Federal Regulations (8 CFR 214.2 (l)(ii)(B)), executive capacity generally refers to the employee's ability to make decisions of wide latitude with little oversight. Managerial capacity generally refers to the ability of the employee to supervise and control the work of professional employees and to manage the organization, department, subdivision, function, or component of the organization. It also includes the ability of the employee to manage an essential function of the organization at a high level without direct supervision of others.
Determining which L-1A category – manager or executive - the employee qualifies for includes considering if the employee is someone who will make decisions without oversight, is relieved of the day-to-day operational tasks, will delegate work to others, or is someone who will act at a senior level and manage an essential function within the organization.
Once that determination is made the next step is to collect detailed and sufficient evidence. Evidence for executive or managerial capacity should include detailed job descriptions that clearly indicate that the beneficiary will not be handling the day-to-day responsibilities but instead will delegate such tasks to other professional level employees. An organization chart is crucial evidence for showing that the beneficiary is a high-level manager within the organization.
Additional evidence will be materials that show the beneficiary's day-to-day job duties:
- For an executive position, sections of an annual report that list the name and job title of the executive and marketing materials that showcase the executive would be quite useful, along with a letter from the petitioning organization confirming the executive position.
- For a managerial position, evidence that proves the employee has oversight of professional level employees and has the ability to make personnel-related decisions, along with conducting performance reviews and making requests for promotions and raises would be important to support the petition.
L-1B – Specialized Knowledge
USCIS defines specialized knowledge as knowledge 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 and procedures. 11
The L-1B category is highly scrutinized by USCIS and it is important to provide detailed evidence to receive a successful adjudication. The most difficult hurdle seems to be proving that the foreign national possesses specialized knowledge.
To overcome this hurdle, the following are a few examples of documentation that may be useful:
- Training certificates/awards to show the Beneficiary obtained the specialized knowledge through programs/experience with the petitioning organization.
- Presentations produced and articles written by the Beneficiary explaining their specialized knowledge and how it is used within the organization.
- Documentation that shows that the Beneficiary has expertise in the petitioning organization's processes and methodologies.
Documentation proving that the Beneficiary led specific project work pertaining to the specialized knowledge confirming that the knowledge the Beneficiary possess is beneficial to the petitioning organization and makes the organization competitive within the marketplace.
Conclusion
The above guidelines will hopefully help practitioners to prevent future RFEs on L-1 cases or at least minimize the extent of the information requested in an RFE. However, as the 2023 Ombudsman Report points out, until more specific training and guidance is provided to adjudication officers on how best to approach L-1s we may continue to see L-1 RFEs issued at higher rates than the H-1B category.
Footnotes
1. The 2023 report can be found at: https://www.dhs.gov/sites/default/files/2023-07/2023%20Annual%20Report%20to%20Congress_0.pdf [last accessed October 13, 2023].
2. The 2010 report can be found at: https://www.dhs.gov/xlibrary/assets/cisomb_2010_annual_report_to_congress.pdf
3. USCIS, "Report on H-1B Petitions Fiscal Year 2022 Annual Report to Congress" (Feb. 22, 2023); https://www.uscis.gov/sites/default/ files/document/reports/FY-2022-Annual-Report-H-1B-Petitions.pdf
4. USCIS Ombudsman, 2023 Annual Report, p. 36.
5. Ibid., p. 37.
6. Ibid., p. 38.
7. The text of this reinstatement can be found at: U.S. Citizenship and Immigration Services, "USCIS Issues Policy Guidance on Deference to Previous Decisions," April 27, 2021: https://www.uscis.gov/news/alerts/uscis-issues-policy-guidance-on-deference-to-previous-decisions
8. USCIS Ombudsman, 2023 Annual Report, p. 39.
9. Ibid., p. 39.
10. Ibid., pp. 35-36.
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