How to Overcome USCIS Challenges to Your Client’s Immigrant Petition for a

Multinational Manager or Executive Classification: RFE Prevention and Response Strategies

By Lesley R. Amano and Leslie K. Dellon

I. General Observations

  1. Psychology of the USCIS RFE Template:
  • If an RFE template is detailed and comprehensive, adjudicators do not feel comfortable removing any items
  • If the RFE is constructed by inserting clauses into a blank form, they are more likely to only select those clauses that are relevant, resulting in a shorter and more targeted document.
  1. Just because you received approval of an L-1A classification, doesn’t mean the immigrant petition will be approved
  • Each submission stands on its own merits
  • However, the AFM encourages adjudicators to specify reasons why the evidence is insufficient for EB-1 despite the L-1A approval, so that any apparent inconsistency in adjudication can be justified to a judge if need be.

C. Petitions by small companies receive tougher scrutiny

  • Particularly difficult when the U.S. entity has fewer than 5 employees
  • Burden to show that the beneficiary will not himself be providing the company’s services, but instead be primarily engaged in managerial or executive duties
  • Specify who fill perform routine office tasks, relieving the beneficiary from performing those “non-qualifying” duties.

II. Qualifying relationship

A. USCIS frequently does not understand how entities are related and asks for documents that are not relevant or that were already provided

B. Types of relationships that can confuse USCIS:

  1. Individual sole owner of foreign corporation and foreign corporation has majority ownership of U.S. corporation
  2. parent-subsidiary but can look more like affiliates, due to individual owners
  3. Often a company of this type is also small
  4. Types of documentation to submit

2. Foreign corporation and U.S. corporation are majority owned by the same foreign corporation (affiliates)

  1. Corporate structure can be very complex, with holding companies etc.
  2. If corporate chart is hard to understand, consider making an extracted chart, showing only those entities that are most relevant in the ownership chain.
  3. Types of documentation to submit

III. Qualifying Employment

  1. USCIS questions whether the beneficiary was employed abroad for at least twelve months out of the three years immediately preceding the filing of the immigrant petition (or the admission of the beneficiary to the U.S., if already employed in L-1A status or other nonimmigrant status acceptable for filing an EB-1 petition now).

1. Produce pay records that cover the required time period.

B. USCIS must receive sufficient evidence that the beneficiary was employed for the requisite period as a manager or executive for the related company abroad and that the job offered in the U.S. is either a manager or executive position. (Reminder: No requirement that the job be in the same category abroad as in the U.S.)

1. The INA, regulations and USCIS Adjudicator’s Field Manual (AFM) require only that the beneficiary “primarily” engage in managerial or executive duties. However, based on RFEs, USCIS expects the petitioner to designate the job abroad and the job in the U.S. as either a manager or an executive position.

2. When have “hybrid” jobs, avoid USCIS challenge by determining in which category the greatest percentage of duties falls and identify the job as that category. Example: If more duties are executive, identify the job as executive and concentrate on describing the executive duties. Mention the managerial duties as additional duties; de-emphasize them.

3. In describing how the beneficiary’s job duties are executive or managerial, do not “parrot” the statutory/regulatory criteria.

4. The regulations and AFM note that the main source of information on the nature of the job duties abroad, and those of the offered U.S. position, will be the petitioner’s letter. It is important that this letter describe the job in detail, and USCIS particularly favors the use of percentages to show the amount of the time the individual spends, or will spend, on each type of task. If the job duties are sufficiently detailed, then USCIS is less likely to request supporting documentation of same, even in the event of an RFE. Rather, many RFEs just request more detailed letters from the foreign and U.S. employers that include specific examples and drill down to actual day-to-day duties. However, if the job descriptions in the initial submission are vague and general, the RFE will likely insist that supporting documentation of duties be provided, in addition to the detailed letters.

C. How to document managerial duties for a manager of people?

1. Identify the beneficiary’s senior standing in the organization: the importance of the person to whom s/he reports/will report and the standing of the professionals s/he manages/will manage, directly or indirectly, their qualifications (supervisory, managerial or professional) and job duties.

  1. Describe how the beneficiary gets/will get the people supervised to carry out activities without doing the “hands-on” work himself/herself.
  2. If the people the beneficiary manages/will manage are employees who work at other offices or are independent contractors, explain in detail how s/he directs their activities remotely.
  3. Be sure to include any outside professional service providers whose activities the beneficiary directs. If the company is extremely small, consider even putting such persons (or organizations) on the company’s organizational chart.
  4. If renting the type of office space that includes shared clerical and receptionist services, be sure to mention this, so it is clear that the beneficiary does not have to do these routine tasks himself/herself.

3. Describe the authority the beneficiary exercises/will exercise over personnel actions with regard to the people supervised.

4. Documentation:

  • Organizational charts are extremely important. Make sure they clearly show the positions supervised, and how many.
  • Job descriptions and professional qualifications of those supervised
  • Proof of authority to hire/fire, and/or to take other types of personnel actions
  • If the beneficiary has discretion over the budget, include documentation of the dollar amount
  • Types of decisions the beneficiary can make on his own; if has to seek approval, at what level/from what number of more senior people?
  • Contracts the beneficiary is responsible for negotiating and/or implementing.
  • Excerpts from reports, examples of marketing/projects for which the beneficiary was responsible.
  • For future activities – business plans, preliminary negotiations, board of directors or comparable authorizations to undertake projects.

D. How to document managerial duties for the manager of a function?

1. Describe the significance of the function managed/to be managed.

2. Identify the beneficiary’s senior standing in the organization, including the importance of the person to whom s/he reports/will report.

3. Even though the beneficiary does not manage people, does/will the beneficiary have the authority to direct senior managers or officials as to how to do their jobs and will those people be accountable to the beneficiary for changes/corrections they have made?For example, is the functional manager responsible for program audits or implementing best practices?

4. Describe the areas of authority over which the beneficiary exercises/will exercise discretion, such as budget (give $ amounts whenever possible), developing new markets, starting new projects, etc. (Reminder: Need to show how the discretion is exercised over the day-to-day operations for which the beneficiary is/will be responsible.)

5. Documentation:

  • Organizational charts are extremely important
  • Even though no direct reports, be sure to include any indirect (dotted-line) reports, if applicable
  • Clearly show who else is on the beneficiary’s level in the hierarchy
  • Be sure to include the person the beneficiary reports to
  • Company literature, such as web site emphasis, reports, marketing materials, press releases demonstrating the significance of the function
  • If the beneficiary has discretion over the budget, include documentation of the dollar amount
  • Types of decisions the beneficiary can make on his own; if he has to seek approval, at what level/from what number of more senior people?
  • If beneficiary has the authority to review and approve/disapprove the actions of others, copy of internal communications to that effect.
  • If beneficiary has the authority to require actions from others, and to set guidelines and timeframes for such action, provide examples of internal communications where the beneficiary exercised such direction.
  • Any role the beneficiary may have in recruitment, even if does not make the actual hiring decision
  • Any role in deciding what projects to pursue, choosing and vetting outside service providers, making recommendations on acquisitions, etc.

E. How to document executive duties?

1. Describe the goals and policies the executive has established/will establish and their significance to the company

2. Explain how the executive directs senior managers so that these managers can oversee others who perform the activities necessary to implement the goals/policies. Remember that the executive does not manage the people who are carrying out the duties. That’s what the managers do.

3. Provide examples of how the beneficiary makes/will exercise discretion to make significant decisions without needing authorization.

4. Provide examples of how the beneficiary receives/will receive a broad mandate from the President, CEO or comparable officer or governing Board, leaving the particulars to the beneficiary.

5. Documentation:

  • Organizational charts remain important to provide a visual as to how high up the beneficiary is/will be in the hierarchy.
  • Budget authority, particularly large dollar amounts and/or scope of authority can be very useful.
  • Examples of the types of programs, projects for which the beneficiary is/will set goals/policies.
  • Agreements the individual has signed on behalf of the company
  • Bank documents showing authorized signer on company’s account
  • Evidence that the individual has represented the company before organizations, such as government agencies, trade associations, international associations, etc.
  • Press coverage and any other indication of role as high-profile face of the company

IV. Doing business

1. Documentation to establish that the petitioner has been doing business in the U.S. for at least one year prior to the date the immigrant petition is filed.

  • Contracts
  • Customer lists and invoices
  • Bank records
  • Tax filings
  • Financial statements showing business revenue
  • Membership in trade associations, participation in trade shows

2. Documentation to establish that petitioner will continue to do business in the U.S. and one other country after the beneficiary is transferred to the U.S. on a “permanent” basis

  • Contracts for long-term projects or with automatic renewal terms
  • Government documentation of foreign company’s continued existence/good standing
  • Evidence of ongoing customer relationships
  • Staffing info for foreign entity

V. Special considerations for small companies

1. How will the foreign entity continue to do business if the beneficiary will be working “permanently” in the U.S.?

2. Does a small company really need a manager or executive?

  • Provide documentation of outsourcing and/or subcontracting for services. More people are involved in the company’s operations than just the employees.
  • Matter of Irish Dairy Board, Inc., File A28 845 421 (AAU Nov. 16, 1989), digested in 66 Interpreter Releases 1329 (Dec. 4 1989): Manager can be overseeing independent contractors.
  • Fedin Bros. Co. Ltd.v. Sava, 724 F.Supp. 1103, 1108 (E.D.N.Y., 1989), aff’d 905 F.2d 41 (2d Cir., 1990): job description must be detailed and specific, rather than merely reciting the regulatory definition of what managers do. Small size of the company is just one factor among others.

VI. Ability to pay: also a requirement for the intracompany manager/executive category

Resources

INA § 101(a)(44)

8 C.F.R. §§ 204.5(g), 204.5(j)

Adjudicator’s Field Manual ch.22.2(i)(3)(D)

Matter of Irish Dairy Board, Inc., File A28 845 421 (AAU Nov. 16, 1989), digested in 66 Interpreter Releases 1329 (Dec. 4 1989)

Fedin Bros. Co. Ltd. v. Sava, 724 F.Supp. 1103, 1108 (E.D.N.Y., 1989), aff’d 905 F.2d 41 (2d Cir., 1990)

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