How to Avoid the Dreaded Request for Evidence:
H-1B's and L-1A's

by Carl Shusterman

A Request for Evidence (RFE) from the INS cannot always be avoided, but by following the suggestions outlined in this article (although some may appear obvious), you should be able to at least minimize those "dreaded RFEs".

Here are some tips to avoid a Request for Evidence with regard to H-1B petitions:

1. Ensure all the forms are completely filled out.

2. Ensure that the Labor Condition Application is certified by the Department of Labor and approved prior to filing.

3. If you are using a blanket Labor Condition Application, be sure to list the names of all the other people included by the LCA.

4. Make sure you include a detailed letter from Petitioner which describes the activities of the corporation, the nature of the position offered and why the alien is qualified for the position.

5. Include a detailed job description demonstrating that the position is a "Specialty Occupation" and requires a Bachelors degree. Clearly indicate the following information:
   1. Number of hours/week;
   2. To whom does the person report;
   3. Job duties;
   4. Percentage of time spent on each duty; and
   5. Minimum requirements for the position.

6. Provide evidence from alternate sources to show that this is a "Specialty Occupation". This can be done in a number of ways, however, we suggest the following:
   1. Reference the Occupational Outlook Handbook and the specific training requirements for the position offered; http://www.bls.gov/oco/
   2. Print out advertisements to show that a Bachelors degree is the industry standard for this or similar positions;
   3. Reference the "Job Zone" from the OES http://www.workforcesecurity.doleta.gov/foreign/wages.asp or the SVP from the Dictionary of Occupational Titles http://www.oalj.dol.gov/libdot.htm Ensure that it is a Zone 4 or 5 occupation or that the SVP in the Dictionary of Occupational Titles is 7 or higher. A Zone 3 occupation does not always require a Bachelors degree so be careful using this as evidence; or
   4. Demonstrate that the Petitioner usually requires a Bachelors degree for this position by showing that other people currently in the position also have a relevant Bachelors degree.

7. Clearly demonstrate that the Beneficiary has a Bachelors degree or foreign equivalent in a relevant occupation by providing a credential evaluation from a reliable credential evaluation service or a College Professor who is authorized to grant an evaluation by his or her university.

8. If the Beneficiary has no degree and you are basing her eligibility for his/her H-1B on his/her experience, include all the materials used by the Evaluator to carry out the evaluation, such as detailed resume, reference and work experience letters, and memberships in professional organizations.

9. If the Beneficiary requires a license for the position as offered be sure to provide a copy of their current license or proof of their eligibility for licensure. If the Beneficiary does not have a license, but will be working under the licensure of another professional include a copy of that person's license.

10. Demonstrate the viability of the Petitioner. These can include, but are not limited to:
    1. Copies of Articles of Incorporation;
    2. Brochures from the Company describing products and services;
    3. Print outs from the Company's web site describing products and services;
    4. Copies of Financial Statements; or
    5. Copies of Tax Returns.

The Bureau of Citizenship and Immigration Services carefully scrutinizes L-1A petitions, particularly those for small and new offices. To obtain approval of these petitions, adequate documentation is the key. It is extremely important to demonstrate the viability and the ongoing growth of the US entity, as well as the continuing relationship with the foreign entity. In addition, the managerial nature of the alien's position must be clearly documented.

Here are some tips to avoid a Request for Evidence with regard to L-1A petitions:

1. Ensure all the forms are completely filled out.

2. Clearly demonstrate the relationship between the foreign and the US entities;

3. Make sure you include a detailed letter from the Petitioner which describes the activities of the corporation, the managerial nature of the position offered and why the alien is qualified for the position.

4. Show that the foreign entity has invested in and paid for the stock of the US entity;

5. Document the viability of the foreign entity by showing:
   1. Copies of Corporate Registration papers;
   2. Copies of Audited Financial Statements for the past three years;
   3. Copy of Lease for the Business Premises;
   4. Brochures, Promotional Material;
   5. Copies of Payroll Records.

6. Document that the alien has worked for the foreign entity for at least one year through a detailed letter from the foreign entity and through copies of the alien's pay stubs.

7. Provide organizational charts for both the foreign and US entities.
   These charts should include:
   1. Name of the person currently in that position;
   2. Job Title;
   3. Salary;
   4. Brief description of duties of all people reporting directly to the beneficiary emphasizing the professional nature of their duties.

8. Include detailed job descriptions for both the alien's position abroad and his proposed job duties. The job descriptions should clearly demonstrate that if the position is managerial, the alien is managing either professionals or supervisors. Clearly indicate the following information:
   1. Number of hours/week;
   2. To whom does the person report;
   3. Job duties;
   4. Percentage of time spent on each duty; and
   5. Minimum requirements for the position
   6. Number of professions/supervisors being managed.

9. Demonstrate the viability of the Petitioner. These should include
   all of the following:
   1. Copies of Articles of Incorporation;
   2. Copies of Stock Certificates;
   3. Copy of the Lease for the Premises;
   4. Copy of current Business License
   5. Brochures from the Company describing products and services;
   6. Print-outs from the Company's web site describing products and services;
   7. Copies of Financial Statements; or Copies of Tax Returns.

10. If the entity is brand new and there are no tax returns or financial statements available, provide a detailed Business Plan with financial projections.

About The Author

Carl Shusterman is a certified Specialist in Immigration Law, State Bar of California
Former U.S. Immigration & Naturalization Service Attorney (1976-82)
Board of Governors, American Immigration Lawyers Association (1988-97)
Phone: (213) 623-4592 Fax: (213) 623-3720
Law Offices of Carl Shusterman, 624 So. Grand Ave., Suite 1608
Los Angeles, California 90017
http://www.shusterman.com/

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