Strategies for Avoiding/Responding to H-1B and L-1 RFE’s

November 12, 2014

As regards Immigration petitions and applications involving third party placements, there has been significant increased scrutiny by USCIS, USDOS and USDOL over the past six years.

June 28th, 2014 USCIS Ombudsman Report to Congress-RFE and Denial Trends

RFE and Denial rates H-1B • Analyzes common RFE requirements and acknowledges RFE rate in high-skilled visa

programs have remained high through first half of FY 2014• Despite high RFE rates in 2013, USCIS approved more than 94 percent of H-1B’s filed• FY 2014 H-1B RFE rate at CSC is slightly higher than at VSC; rates at both Service

Centers have increased since 2013• Specific statistics on H-1B adjudications not provided • Preponderance of evidence standard: Ombudsman continues to urge agency to

reinforce this training for all USCIS adjudicators by developing and requiring refresher courses on a regular basis

June 28th, 2014 USCIS Ombudsman Report to Congress- RFE and Denial trends

RFE and Denial ratesL-1 • Report notes lack of guidance/regulation on definition of specialized knowledge

and argues that it reflects such high RFE rates - Overall L-1B RFE rate is nearly 50%; the rate at VSC is up almost 20% from FY 2013, whereas the rate at CSC is slightly down- In the first two quarters of FY 2014, L-1B CSC RFE rate is at 50% and 56.7% at VSC-In 2013, L-1B CSC RFE rate was 51.5%, and 41.4% at VSC- Overall L-1A RFE rate is nearly 43%; the rate at VSC is slightly up from FY 2013, whereas the rate at CSC is slightly down.

• L-1B denial rates increased in recent years - Five years ago, overall denial rates were approximately 20% - Denial rates in FY 2013, were at 40% (32% for CSC and 8% VSC)- Denial rates in FY 2014 have slightly increased at both Service

Centers - These statistics are for ALL cases, not just third party placements

June 28th, 2014 USCIS Ombudsman Report to Congress- RFE and Denial trends

Administrative appeal approval rates• Ombudsman reiterates lack of transparency regarding Administrative Appeals Office

(AAO) policies and procedures- Suggests that AAO publish more AAO precedent decisions for quick

review, etc. • Approval rates for H-1B and L-1 petitioners who filed administrative appeals are

extremely low- Success rate for H-1B appeals has been decreasing from 2.5% in FY

2O11, to 2% in FY 2012, to 1% in FY 2013. - Success rate for L-1 appeals increased from 5% in FY 2011 to 8% in FY

2012, but decreased to 7% in FY 2013

Relevant Excerpts from CIS Ombudsman’s commentary on high RFE and denial rates

L-1B Filings“It is difficult to identify the root cause of the high RFE and denial rates. The Ombudsman recognizes that USCIS cannot prevent the receipt of improperly prepared L-1B submissions. However, the sustained high rate of RFEs and denials in this visa classification indicates several possibilities: USCIS adjudicators are not receiving the right information from petitioners, adjudicators do not fully understand the legal standards for establishing L-1B specialized knowledge, or petitioners do not understand what USCIS adjudicators are looking for in an L-1B filing”. (Pg. 38 of CIS Ombudsman 2014 Annual Report)

H-1B Filings “Despite high RFE rates in 2013, USCIS approved more than 94 percent of H-1Bs filed, 83 percent in the L-1A classification, and 67 percent in the L-1B classification. High RFE rates coupled with high approval rates indicate USCIS needs to better articulate evidentiary requirements. USCIS’s issuance of such unduly burdensome RFEs consumes both USCIS and employer resources as well as delays final action on otherwise approvable filings. RFEs such as those described above demonstrate that additional training and quality assurance is needed to ensure USCIS adjudicators are aware of and adhering to current USCIS guidance and policy”. (Pg. 36 of CIS Ombudsman 2014 Annual Report)

The Burdens of High RFE Rates

Issuance of unnecessary RFEs is inefficient for USCIS because they interrupt normal processing and require adjudicators to review cases more than once. The agency also incurs administrative costs for storing, retrieving, and matching files with RFE responses after they are submitted. For petitioners, RFEs can disrupt business operations and planning, and result in delays for product development or client services. Additionally, the issuance of unduly burdensome RFEs erodes stakeholder confidence in the agency’s adjudications and increases the legal costs associated with these filings.

Ombudsman’s Past Recommendations

The Ombudsman (2010) previously recommended that USCIS conduct supervisory review of all RFEs at one or more of its service centers and in one or more product lines as a quality control pilot measure. The agency declined to adopt this recommendation, noting that it routinely conducts quality reviews. It deemed 100 percent supervisor RFE review to be too time-consuming and resource-intensive, despite the enormous costs for the agency in preparing RFE’s and reviewing responses in tens of thousands of cases.

FY 2015 H-1B Cap Statistics and Outcomes: Third Party Placement Filings

Client Type Company A Company B Company C

3rd Party placements by high volume filers

High-volume filer - 100% regular processing High-volume filer - 100% premium processing

High-volume filer - 99% regular processing

VSC 56% of total filings 80% 47%CSC 44% of total filings 20% 53%

Support letter Detailed Detailed Less detailed

Right to control evidentiary strategy

Petitioner letter MSA and/or SOW End-client letter if no MSA/SOW *Client does not file petitions for which no MSA, SOW and/or ECL can be provided

Petitioner letter MSA/SOW only in limited cases *End-client letters rarely provided

End-client letter only in some cases MSA and/or SOW

Requested period of employment

VSC filings: Petitioner requests three years CSC filings: Petitioner requests employment period tied to end-date of active SOW, which appears to result in higher rate of approval without RFE.

Petitioner requests three years for all filings

Petitioner requests three years for all relevant filings

Overall RFE rate 8.65 % 31.5% 46% VSC RFE rate 3.7% 37.8% 45%

CSC RFE rate 14.9% 5.4% 47%

Denial rate 0.09%

10%

0.64%

Approvals with shorter than requested validity period

Minimal

1.3% of total receipted cases

~ 50%

Our Recommendations

H-1B Petitions• File with everything available (MSA, SOW, End-Client Letter) • End Client letter is not critical (does not appear to make a huge impact) • MSA should be valid for as long as possible (eg. 5yrs)• Document all efforts and attempts to extend MSA where applicable • SOW is critical, as it will provide detail about the specific specialty

occupation project work available to the beneficiary at the client site

H-1B Petitions• If possible, provide a more detailed itinerary in response to an RFE,

detailing project milestones to take place throughout the requested validity period (3 years)

• For all cases, provide generic expert opinion letter confirming role requires bachelor degree in a related field

• If equivalency relies on experience, provide expert opinion letter from professor in the field

• Provide recent paystubs for Change of Status requests

Our Recommendations Continued

Our Recommendations

L-1 Petitions• Avoid filing 3rd placement L-1B petitions with USCIS wherever

possible• Approval rates for such cases are typically less than 20%• Facilitating travel to US Consulate abroad to file a fresh L-1B

petition allows for “two bites at the apple” • Filing L-1B Ext with USCIS will facilitate temporary extension of

status while petition is pending• As with H-1B petitions, provide all documentation requested in

response to an RFE

Fogo de Chao Decision

It was successfully argued that a gaucho chef who possessed “specialized knowledge” would be capable of:• Preparing and cooking five to six skewers of meat on an open grill• Circulating through the dining room to carve meats for guests• Educating those guests about both the cuts of meat being served and gaucho culinary and cultural traditions • Monitoring the estimated future demand for food over the course of the evening

The INA section 214(c)(2)(B) defines specialized knowledge as follows: “an alien is considered to be serving in a capacity involving specialized knowledge with respect to a company if the alien has a special knowledge of the company product and its application in international markets or has an advanced level of knowledge of processes and procedures of the company…”