There are few things as alarming as an RFE in the world of immigration law, especially for a prestigious EB-1 green card. Fortunately, while an RFE may present an obstacle in your journey, it also presents an opportunity. If you’ve received an EB-1C RFE, here are the steps you should go through to take full advantage of that opportunity.
What Are the EB-1C Requirements?
In order to understand what reasons the USCIS might give for an EB-1C RFE, we must first take a look at what the requirements are for this immigrant visa.
The EB-1C is a prestigious green card reserved for the managers and executives of multinational companies. In order to qualify as an employer, a company must be a U.S. entity with a branch, office, affiliate, or subsidiary in a foreign country. The company must also have been conducting business in that foreign country for at least one year.
As the beneficiary, you must have been working in the foreign branch for at least one continuous year in the previous three years leading up to the green card petition. You must also be working in a managerial or executive capacity, which has very specific requirements:
As a manager, you need to be responsible for a group of employees in a department or function of the company. You will need to have the ability to hire, fire, and control the wages of the employees and oversee their daily tasks.
To qualify as an executive, you need to oversee a group of managers and have the ability to make large-scale decisions for the company without the need for substantial supervision. You must also be able to establish goals and policies for the company.
It is important to remember that you must work abroad as a manager or executive for one year in the three years prior to filing.
What to Do After an EB-1C RFE
The USCIS will occasionally send a Request for Evidence (RFE) rather than outright denial if you meet the requirements on paper but lack the documentation to back up your claims.
If you receive an EB-1C RFE, then the first thing you should do is take it to your immigration attorney. The RFE will include the reasons for the issuance and what evidence the USCIS requires to move forward with processing your petition.
There will also be an EB-1C RFE response time frame in which the USCIS expects a response. If you fail to meet this deadline, then your case will be rejected on the grounds of a lack of evidence. Because of this, it is all the more important that you work with your immigration attorney as soon as possible.
Your response should not only include the missing documentation and evidence, it should also be advocated well. In legal terms, advocacy is how the facts are argued from the standpoint of the law. It’s rarely enough to simply present the facts, you also need to argue how they support your case in order to get an EB-1C RFE approval.
What Are Some Reasons for an RFE?
Here are some common reasons for an EB-1C RFE:
The Job Doesn’t Qualify
As mentioned before, you must be employed as a manager or executive for at least one year in the three years leading up to the petition. You must also intend to work as a manager or executive while in the U.S. If there is any doubt that you fulfill the requirements for a manager or executive as outlined above, you may expect to receive an RFE.
Keep in mind that simply having the words “manager” or “executive” in your job title does not automatically qualify you for an EB-1C. For example, working as an account manager or executive would not meet the requirements because you do not control the salaries and activities of other employees.
Failing to establish that you were employed abroad can also trigger an RFE. This is especially the case if you are currently working for your employer in the U.S. Here is an example:
Ron began working for the German branch of Widget, Inc. in 2015. In 2016, he was transferred to the parent company as a manager under the L-1A visa. Now, in 2017, his employer wants to sponsor him for an EB-1C. Without proper documentation, the USCIS is likely to issue an RFE to make sure that he completed one continuous year abroad.
Work alongside your immigration attorney to find out exactly how you can prove your work abroad in your petition.
Ability to Pay
One of the main reasons that an EB-1C RFE or even a denial is issued is when the employer is unable to prove that the wages for the beneficiary can be paid according to what is promised on the job offer.
Keep in mind that your employer not only needs to have the capacity to pay these wages, they also need to be able to prove that they have this capacity. The way to do this is to provide the USCIS with annual reports for the company, the net income, current assets, financial statements, and tax returns.
One great way to prove that you are able to pay this wage is if your employer has paid you this wage in the past. Work with your immigration attorney to make sure that this requirements is satisfactorily met.
What If My EB-1C Petition is Denied Without an RFE?
The USCIS is under no obligation to issue you an RFE, so there are times when you receive a denial or a rejection right off the bat. If this happens, then there are a few options available to you.
If your rejection is based on something simple such as a lack of documents or a mistake on the petition, you can always just work with your attorney to fix these mistakes and have your employer file a second petition.
However, if your petition was denied because of a more serious issue like a lack of qualifications or a criminal record, you may need to seek alternative routes.
Make a Motion
You can make one of two legal motions if your EB-1C gets denied without an RFE. A Motion to Reopen the case is appropriate if new evidence has come to light that could change the outcome of the decision if it had been considered.
A Motion to Reconsider is for situations where you and your attorney believe that the officer who evaluated your case was wrong in his or her decision. With this route, you should be ready to argue why you think the outcome was incorrect from a legal standpoint. It is not advisable to do this without an attorney.
While a legal motion targets the entity that made the decision, an appeal is made to a third party that will either uphold or overturn the evaluating officer’s decision. That third party will most likely be the Administrative Appeals Office (AAO).
Unfortunately, the AAO usually chooses to uphold the previous decision rather than overturn it, so appealing may not be the best path if you do not have new evidence to present.
Find a Different Path
You may also want to consider choosing a different employment-based green card option instead of the EB-1C. The EB-2 is for those who possess exceptional ability in their field or hold advanced degrees. The EB-3 is for anyone who has a job offer from a U.S. employer that is not seasonal or temporary.
However, both the EB-2 and the EB-3 require a PERM Labor Certification as a first step to the petitioning process. They also may have increased priority date waiting times depending on your country of origin. Speak with your attorney to find out if these options would be right for your case.