Visas - H-1b, L-1, E, O, TN

L-1 RFE’s are handed out inconsistently between Service Centers?

The Service’s annual 2016 report to the Ombudsman was recently release and contained concerning information for L-1 visa petitioners. Unfortunately, the RFE rates of L-1 visas appear to continue to have no rhyme or reason.

“L-1A RFE data shows inverse trending between the CSC and the VSC. For example, CSC’s L-1A rates surged to 55 percent in FY 2015, its highest level in 20 years, while in the same period, VSC’s rate dropped dramatically from a high of 44.6 percent in FY 2014, to 29 percent in FY 2015. The number of L-1B RFEs dropped in FY 2015 at both service centers, to 44 percent at the CSC and 33 percent at the VSC.” See Ombudsman Report p. 59.

The L-1 memo, L-1B Policy Guidance Memorandum, was supposed to help alleviate some of this uncertainty. “It does not appear that RFE rates in FY 2015 were affected by this guidance, as it did not become final until August 17, 2015.” See Ombudsman Report p. 59. A very small sample size granted, but this memo was supposed to be seminal in the L-1 category. I’ll be eagerly anticipating next year’s report. What we can take away is that it looks like you’ll have a slightly better chance of getting an L-1A through Vermont and that L-1B’s RFE’s have dropped but not as much as we were hoping for when the L-1B Policy Guidance Memo was released.

Government Agency Actions - USCIS, ICE, etc. Visas - H-1b, L-1, E, O, TN

Final Version of L-1B Adjudication Policy Memorandum Released

On August 17, 2015 USCIS released the final version of its policy memo that will guide the future adjudication of the L-1B visa classification. This memo will apply to all L-1B petitions pending or filed with USCIS on or after August 31, 2015. If petitioners will have a petition pending with USCIS beyond August 31, 2015 they should be using this memo as guidance to prepare their petitions if they are already not doing so.

Visas - H-1b, L-1, E, O, TN

L-1B Template for RFE’s

U.S. Citizenship and Immigration Services has issued a draft template of requests for evidence (RFE) for L-1B petitions and is taking comments on the proposed form, a copy of which can be found here. USCIS will take comments until July 31. This is a follow up to its Memorandum on L-1B Adjudications Policy earlier this year. Even though the new L-1B Adjudications memo has not gone into effect, it appears that both USCIS and practitioners are looking ahead to when the rule does become final. The main benefit that can be gleaned from the RFE template is it that it contains an expansive list of evidence that can be provided to demonstrate that the requirements of an L-1B visa are met, including specialized knowledge.

Green Cards

Crazy Kazarian ! RFE vs. NOID ?

NSC recently issued clarification on its RFE vs. NOID issuance on I-140 petitions subject to Kazarian’s two-part analysis, such as petitions for Aliens of Extraordinary Ability and Outstanding Professors or Researchers. The issue with this review is that applicants in these categories basically must prove their case to CIS twice.

Kazarian is a 2 part analysis. The first part is relatively simple, the applicant must demonstrate that they meet the required number of criteria, for example 3 out of 10 or 2 out of 6. The second part is a “Final Merits Test” in which the adjudicating officer takes all the evidence presented as a whole to determine if the applicant has in fact met the requirement of their petition, that they are truly extraordinary or outstanding. In short, the officer decides the “quality” of the evidence used to meet the appropriate number of criteria.

The craziest part, if you cannot even meet the first part, the application does not demonstrate that you meet enough of the criteria, CIS issues an RFE to gather more evidence. However, if you meet the first part, but the officer determines that your evidence is not “quality” enough, CIS will issue a NOID!

I’m not really surprised that CIS is doing something backwards issuing NOID’s for petitions that meet most requirements (and the second analysis is basically up to the discretion of that officer) and RFE’s for petitions that meet none, but come on man that’s crazy.