advanced nivs – hot topics 1 aila – texas spring conference 2015 santa fe, nm lisa sotelo,...

ADVANCED NIVS – HOT TOPICS

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AILA – TEXAS SPRING CONFERENCE 2015

Santa Fe, NM

Lisa Sotelo, Associate, Elise Healy & Associates, Dallas, TX

Ruth Lozano McChesney, Partner,De Mott, McChesney, Curtright & Armendariz, LLP, San Antonio, TX

RFE TRENDS AND STRATEGIES

RETURN THIS NOTICE ON TOP OF THE REQUESTED INFORMATION LISTED ON THE ATTACHED SHEET

Note: You are given until April 26th in which to submit…

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INTRODUCTION

Recent Trends in USCIS Requests for Evidence (RFE)

Strategies to avoid RFEs

RFE Practice Pointers

Responding to RFEs

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RECENT TRENDS IN USCIS REQUESTS FOR EVIDENCE

USCIS is increasingly responding to petitions and applications, including H-1Bs, Es, Os, L-1s, I-140s, I-485 with burdensome RFEs

USCIS is increasingly tallying and tracking cases filed by each company. Companies that file a disproportionately high number of petitions

relative to its overall headcount often face more burdensome RFEs.

USCIS can also consider information outside of the petition, some of which may not even be available to the employer.

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Categories of Requests in RFEs Being Issued Specialty Occupation Employer-Employee Relationship; On and Off Site employment Business Verification (VIBE); Doing Business Business Relationship; Ownership; Control Specialized Knowledge Managerial Duties Maintenance of Status and Pay Maintenance of Initial Employer-Employee Relationship Doing Business Denials - U.S. office considered to be a “mere agent” of

the foreign affiliate Experience Letters Required from Employer (Primary Evidence) Kazarian two step Ability Pay

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H-1B: Specialty Occupation

Although additional scrutiny has affected companies of all types and sizes, companies that provide IT services have faced more scrutiny.

The California Service Center frequently requests IT services companies’ tax returns, quarterly wage reports, W-2s, client contracts, statement of works and/or client letters specifying the H-1B employee by name, lease agreements with floor plan, business license and photos of the office.

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H-1B: Specialty Occupation

The Vermont Service Center usually takes a more reasonable approach by accepting client letters that specify the H-1B employee by name, verify the duration and nature of the project, the location where the work will be performed and the specific duties the H-1B employee will be responsible for.

Other issues for H-1Bs: Specific field of study, Marketing Analyst positions, Educational equivalencies.

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RECENT TRENDS IN USCIS REQUESTS FOR EVIDENCE H-1B Specialty Occupation – Sample RFE language:

“The LCA submitted with this petition is certified for the occupation of Computer Systems Analyst. In the petition, you indicate that the beneficiary will perform the proffered duties as a QA Test Engineer I. Accordingly, the submitted LCA does not correspond to the petition since the duties of the occupation for which the LCA is certified are not those of a QA Test Engineer I. Therefore please provide an LCA, certified prior to the date of the filing of the present position, for the position of a QA Test Engineer that corresponds to the proffered duties.”

“You have provided a copy of the beneficiary’s Bachelor of Science Degree in Electrical Engineering. However, the aforementioned degrees are not sufficient to demonstrate that the beneficiary is qualified for the proffered position because the degrees are not associated to computer science, or a closely related field. It must also be demonstrated that there exists a nexus between the nature of the beneficiary’s degree (or equivalent) and the position duties proposed by the petitioner. Please explain how the beneficiary’s degree and/or work experience will prepare him/her as a Programmer Analyst.”

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RECENT TRENDS IN USCIS REQUESTS FOR EVIDENCE H-1B Speciality Occupation – Sample RFE language:

“U.S. Citizenship and Immigration Services (USCIS) does not use a job title, by itself, when determining whether a particular position qualifies as a specialty occupation. The record does not establish that the job offered requires the services of a person performing a specialty occupation, i.e., the holder of at least a baccalaureate degree in a related field. You have not provided any information about the position being offered to the beneficiary: only a job title.”

“You indicated on the Form I-129 that your company/organization is located at XYZ Bryan Street Suite 1111 Dallas, TX 75201. However, USCIS’s VIBE indicates that your company/organization is located at XYZ Jackson St Dallas TX 75202. Submit documentation to confirm your company/organization’s most current location.”

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L-1B: Specialized Knowledge RFEs frequently ask for organizational charts of both the

US and overseas entity, marketing materials, payroll records to prove that the candidate worked for the foreign entity for the required one year, and information regarding the critical role of the L-1 candidate.

Increasingly, RFEs are followed by a denial of the L-1 petition. Initial indications are that VSC is issuing RFEs in 50% of cases and denying 50% of those in 2014

There are even denials for candidates who work on the company’s proprietary technology and products.

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L-1B: Specialized Knowledge Cont. USCIS states in the denials that there is insufficient proof

that the specialized knowledge cannot be taught or there is insufficient proof that the employee is of “crucial importance” or is a “key personnel”.

L-1A petitions for managers and executives are also affected by similar RFEs but to a lesser extent.

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RECENT TRENDS IN REQUEST FOR EVIDENCE Qualifying Relationship Request Example

Ownership and Control of foreign entity requesting wire transfers,customs forms, articles of incorporation, telephone directory entry, newspaper or trade publications about company,letters from business or professional organizations, photos depicting operation...

Ownership and control of the US entity requesting verifying Registration in the State of incorporation and/or operation.


E-2: Treaty Investors Investment Funds – Proof of Origination

“Show clear and legitimate source and path of funds invested”

Proof of origination: explain the source, reason for receiving funds; provide names of account holders depositing funds and any affiliation with the investment enterprise; show clear/legitimate path between the applicant’s US investment and any funds transferred from another country original wire transfers – the originators of the monies deposited or wired

must be clearly shown, verifiable by name and bank account number Copies of cancelled checks (front and back) and certified bank statement

copies (certified by bank or financial entity) Business licenses Personal tax returns Bank records Employment records Property records

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RECENT TRENDS IN USCIS REQUESTS FOR EVIDENCE E-2 Treaty Investors

New Business Investment Show clear evidence of the committed investment funds

Copies of cancelled money orders, or personal, business, or cashiers checks (front and back) that have been certified by the bank or financial entity

Copies of the investors bank statements showing checking/savings account transactions (or other source of funds) to substantiate funds were actually committed to the treaty enterprise

Purchase transaction verification Financial accounting of the entire purchase transaction, signed by a CPA,

which describes in detail each individual transaction and then clearly identifies the at-risk funds that were actually invested by the applicant

Include a clear, legible copy of the CPA’s license Submit clear, legible copies of all documentation used by the CPA to

develop the requested accounting for the entire treaty investment transaction.

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RECENT TRENDS IN USCIS REQUESTS FOR EVIDENCE O-1 Extraordinary Ability (Arts)

Sample RFE language: CONTRACTS: “Petitions seeking O nonimmigrant classification must

include a copy of a contract between the beneficiary and either the petitioner or employer. If a written contract does not exist, you may submit a detailed summary of the terms of the oral agreement between the beneficiary and petitioner or employer”

NATURE OF EVENT/ENGAGEMENT: “You must provide an explanation of the competition, event, or performance in which the beneficiary will participate. An event means an activity such as a scientific project, conference, convention, lecture series, academic year, or engagement during the request validity period.”

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RECENT TRENDS IN USCIS REQUESTS FOR EVIDENCE O-1B Extraordinary Ability (Arts)

CONSULTATION: “Petitions seeking O1B nonimmigrant classification for the arts must include a written advisory opinion from a US peer group in the area of the beneficiary’s ability. . . USCIS acknowledges your statement that no peer group, labor, or management organization exists; however, it appears an appropriate labor organization may be: ___. You must submit a new consultation . . . that must state: 1) the beneficiary’s ability and achievements in the field; 2) nature of the duties to be performed; and 3) whether the position requires the services of an alien of extraordinary ability.

AGENTS: “USCIS acknowledges that you submitted the summary agreement between you and the beneficiary establishing you are authorized to act as an agent on behalf of the beneficiary and an itinerary; however, you have not provided contracts between the beneficiary and all of the entities with whom the beneficiary will perform services, explaining the terms and conditions of employment and you have not provided a complete itinerary of services or engagements that specifies the dates of each engagement, the names and addresses of the entities with whom the beneficiary is contracted to perform the services, and the names and addresses of the establishments, venues, or locations where the services will be performed.”

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I-140 Immigrant Petitions A large number of RFEs scrutinize an employer’s ability to

pay the offered salary.

USCIS asks for proof that the company can pay all of the I-140 beneficiaries, not just the beneficiary who the company filed for. Very cumbersome for a large corporation

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I-140 Immigrant Petitions

EB-1 Extraordinary Ability or Outstanding Researcher/Professors

In Kazarian v. USCIS, the Ninth circuit used a two part approach

Initial, objective review of evidence

Final merits determination

USCIS adopted the Kazarian two step analysis in a policy memorandum released on December 22, 2010.

Led to increase in RFEs, NOIDs and denials

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I-140 Immigrant Petitions

Kazarian’s final merits determination inserts a subjective element into the adjudication process

There is a lack of USCIS guidance on how the final merits determination is conducted

Many adjudicators have forgotten the standard of review.

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RFE PRACTICE POINTERS

New G-28s submitted with an RFE Response will not be entered into the database because the RFE Response with the goldenrod cover sheet are sent directly to the adjudicator. Practice Pointer – Use a sharpie and write on both the G-28

and the goldenrod cover sheet “New G-28 - Please Data Enter.”

Practice pointer - Write legal memorandums with the law and citing the evidence. Officers at TSC indicated they do read and use these legal briefs. They will check to be sure all evidence is there and says what the legal brief indicated.

When do you inquire with the TSC regarding a pending RFE Response?

Practice Pointer - Contact Customer Service if a RFE Response has been pending more than a month.

STRATEGIES TO AVOID RFES

Carefully develop strategy of the case early on

Avoid the situation where you have to switch gears after the RFE

For EB-1 cases, once you have met the regulatory criteria, you have to focus on building your argument for the final merits determination Try and meet as many categories as possible but don’t

overreach Submitting weak evidence will weaken the whole case Make sure the supporting evidence is clear and

demonstrates HOW the standard is met

Prepare a cover letter which presents the evidence clearly and convincingly.

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STRATEGIES TO AVOID RFES

Present the evidence in an easy to read, accessible way

Use color to grab attention

Adjudicators respond to visuals

Use cover stories and featured articles

Critical to understand the regulations

Familiarize yourself with AAO case law

Build the strongest case up-front to decrease likelihood of RFE

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RESPONDING TO RFES

Review RFE carefully RFEs are generally several pages long and filled with

boilerplate, with only slight attempt to tailor to the individual case.

Make sure the officer is using the correct legal standard

Remind the adjudicator of the correct legal standard tactfully

Only have 84/87 days from date of RFE

Start working on collecting the evidence since obtaining evidence can take time

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ADDITIONAL STRATEGIES

If you have a difficult RFE, it may be better to simply withdraw the case and refile

If withdraw and refile, you can use the RFE to make your case stronger

If case is denied after responding to RFE, the denial is apparent to USCIS

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ADDITIONAL STRATEGIES

Appeal when there is an important legal issue or where the beneficiary cannot afford to let go of the I-140, such as age-out issues for children or H fifth year issues.

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AAO DECISIONS

Qualifications & Foreign Credentials Evaluations

The single degree requirement and exceptions

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AAO & OTHER DECISIONS – QUALIFICATIONS

H-1B. Specialty Occupation. The court found that “market research analyst” met qualifications as a “specialty occupation,” stating that the regulations do not “restrict qualifying occupations to those for which there exists a single, specifically tailored and titled degree program.” (Raj and Company v. USCIS, 1/14/15)

H-1B. Specialty Occupation does not require degree in a single field of study. AAO cites AILA’s “specialty occupation” memo and states it would not categorically exclude a position as a specialty occupation if it requires degrees in more than one specialty. [Matter of ______ (AAO 4/7/14)]

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AAO DECISIONS – QUALIFICATIONS

H-1B. Foreign Credentials Evaluation. Combination of a three-year bachelor’s degree and more than ten years of work experience qualified a Forensic Alcohol Criminalist for the specialty occupation. (FCE by university professor) [Matter of ________ (AAO 09/04/2013)]

L-1B. Specialized Knowledge. More likely than not that the FN has advanced knowledge of the foreign employer’s processes and procedures. (Preponderance of the evidence standard; specificity; objective evidence to support Petitioner’s claims) [Matter of ________ (AAO 04/09/2013)]

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BACK-PAY OF WAGES & CUTTING OFF EMPLOYER LIABILITY – TYPES OF VIOLATIONS

Employer accepts payment for prohibited fees

Employer requires a penalty from FN for early departure

Failure to maintain a Public Access File

Misrepresentation of a material fact on the LCA

Failure to pay wages as indicated on the LCA

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BACK-PAY OF WAGES & CUTTING OFF EMPLOYER LIABILITY – TYPES OF VIOLATIONS

Failure to provide working conditions as indicated on the LCA

Filing an LCA during strike/lockout

Displacement of U.S. worker(s)

Failure to conduct good faith recruitment

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BACK-PAY OF WAGES & CUTTING OFF EMPLOYER LIABILITY - PENALTIES

Payment of Back Wages

Return of money paid by FN

Reinstatement of employees

Civil Monetary Penalties ranging from $1000 to $35,000 per violation.

Debarment

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CUTTING OFF EMPLOYER LIABILITY

Understanding the LCA obligations

Maintaining a Public Access File

Keeping lines of communication open with immigration counsel

Changes in employment status or position of FN

Effective termination of a FN H-1B

Limiting pay-back provisions in employee contracts

Establishing an immigration compliance program

Establishing an immigration sponsorship policy

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CONCLUSION

Recent trends.

Responding to RFEs.

Qualifying the foreign national

Limiting employer liability

Additional strategies.

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advanced nivs – hot topics 1 aila – texas spring conference 2015 santa fe, nm lisa sotelo,...

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