L-1 Visas: Recent Trends in Requests for Evidence (RFEs) and COVID-19 Consequences

By: Lana Morgan, Esq.

Under the Trump Administration, United States Citizenship and Immigration Services (USCIS) is closely scrutinizing visa petitions and issuing Requests for Evidence (RFEs) that can seem templated and randomized. L-1 intracompany transferee visas are targeted the most, with high rates of denial and over 60% of L-1 petitions receiving RFEs. Work with an experienced immigration attorney to overcome these barriers and effectively sponsor your L-1 employees.

Evidence Required for L-1 Petitions

L-1 visas enable companies to transfer managers, executives, and workers with specialized knowledge from an overseas affiliate branch to work in a United States office. There are two distinct types of L-1 visas for intracompany transferees: L-1A Managers/Executives, and L-1B Specialized Knowledge Employees. The main requirements for both visa types are the same, and include:

1. One of the transferring companies must be a branch, a subsidiary, or an affiliate of another.
2. Both companies must be actively doing business and cannot be dormant.
3. The L-1 employee must have been working in either a managerial, executive, or specialized knowledge capacity for a foreign organization for one continuous year within the previous three years.

The first two requirements can be easily demonstrated with basic documentation that may even be public for larger companies. Employment with the foreign company, however, is more difficult to establish and closely scrutinized by USCIS. Your experienced immigration attorney will help you gather all the documentation needed to prove your L-1 worker’s employment with the foreign entity.

Avoiding an RFE for L-1A Managers or Executives

There are two types of L-1A visas: one for a manager, who could be either a “function” or a “personnel” manager, and one for an executive. While each role has many requirements, generally:

• Personnel managers are primarily responsible for controlling and supervising the work of employees that are at a professional level.
• Function managers are primarily responsible for managing an essential function of the business, which makes this role challenging to prove.
• Executives manage the organization or one of its major functions, and they also establish goals and policies. These roles can be difficult to establish, because an executive’s seniority leaves them with little time to gather the best possible evidence.

To demonstrate a role’s managerial capacity for an L-1A visa, employers must provide evidence that:

• Employees are managed by the prospective L-1A visa holder, and how they are managed
• Subordinate employees are “professional”
• The manager is involved in decision making at a high level
• The prospective L-1A manages the essential business function (functional managers only)

An experienced attorney will come up with creative ways to prove the L-1A employee’s role and help you avoid an RFE.

Building a Strong Petition for L-1B Specialized Knowledge Employees

To qualify for L-1B visas, employees must hold jobs that require advanced and specialized knowledge. The challenge with L-1B roles is that employers must simplify these job descriptions enough for USCIS to understand them, but not so much that the role no longer seems specialized. Your attorney must establish that the L-1B employee was either involved in developing the company’s complex product, or that they possess specialized, unique, and difficult to obtain skills.

Because of their inherent complexity, L-1B visa filings require longer preparation time and a heftier petition.

Additional Common L-1 Visa Evidence Issues

USCIS scrutinizes other additional pieces of evidence when reviewing L-1 petitions. Recently, USCIS has been issuing more intensive RFEs to smaller businesses than to larger ones. Smaller businesses commonly receive RFEs that question the beneficiary’s qualifications, whether the business is active, and the qualifying relationship between the entities. On the other end of the spectrum, larger companies tend to get RFEs that question only the beneficiary’s qualifications. An experienced attorney can help you overcome this discrimination against small businesses.

Further, USCIS frequently requests more detail on the executive, managerial, or specialized knowledge nature of job duties, including a percentage of time allocated for each duty, and a description of how subordinate employees will relieve the manager or executive from non-qualifying duties. By working with an experienced attorney, employers can provide a sufficient job description with the initial filing and avoid this type of RFE.

Latest Presidential Proclamation and its Effect on L Visas

On June 22, 2020, President Trump signed a proclamation suspending the entry of certain immigrants and nonimmigrants into the United States to protect US jobs following the coronavirus (COVID-19) outbreak. The proclamation suspended the entry of nonimmigrants in several categories, including L visas, if they were not already present in the US on the proclamation’s effective date (June 24, 2020) and did not already hold a valid US visa or travel document. This suspension is effective until December 31, 2020. 

While the proclamation may appear dire at first glance, its impact is limited:

• Existing L visas will not be revoked.
• Employers can still file L visa extensions and changes of status from any visa to an L visa, for foreign nationals that were already in the US and held a valid US visa on June 24, 2020.
• US consulates abroad are not currently issuing new visas because they are closed due to the pandemic. When they re-open, they will likely have a large backlog and will not be able to schedule new visa appointments for an extended time period.
• L visa applicants whose entry is in the national interest of the United States are excluded from the suspension.

Conclusion

L-1 visas are closely scrutinized by the current US administration, with additional challenges created by the COVID-19 pandemic. However, a seasoned immigration professional can help you prepare a successful L-1 visa petition. Contact our experienced attorneys to schedule an L-1 visa consultation at info@chugh.com.