Every aspect of immigration law is fraught with complications, especially the EB-1 green card. Sometimes, despite doing everything the right way, you can still get a denial. When it comes to a green card as distinguished as the EB-1C, a denial can be devastating. In this article, we delve into the reasons behind an EB-1C denial and how to avoid it.
Before we take a look at the reasons for denial, let’s first find out what goes into an EB-1C green card.
The EB-1C is an immigrant visa designed to grant lawful permanent resident status to the managers and executives of multinational companies that have a branch in the United States. One of the advantages of getting a green card in the EB-1 preference level is that your employer does not need to obtain a PERM Labor Certification on your behalf. Additionally, the priority date waiting times tend to be much shorter for the EB-1 green cards than they are for other preference levels.
One of the disadvantages, however, is the fact that you will be unable to use premium processing to expedite your I-140 petition waiting time from an average of six months to just 15 calendar days, which is only available for the EB-1A, EB-1B, EB-2, and EB-3 green cards.
In order to qualify, both you and your employer need to fulfill certain requirements.
Requirements for you
You must have maintained employment with the company for at least one continuous year in the three years leading up to your green card petition. You must also have the intention of immigrating to the U.S. to work in an executive or managerial capacity for the employer.
Requirements for your employer
Your employer must be a U.S. employer that has been doing business in the U.S. for at least one year. They must also have an office, branch, or affiliate overseas that has employed you for this transfer.
Why Was My EB-1C Denied?
So now that we know the basic overview for the EB-1C green card, we can get a better idea of what the USCIS is looking for when processing petitions. WSo, without further ado, here are the top 6 reasons for EB-1C denial.
1. Fees Were Insufficient
One of the common reasons for any visa denial is filing the wrong fees to the wrong places and it still stands as one of the common EB-1C rejection reasons. Due to the ever-changing nature of immigration law, fees and filing structures are also fluctuating. With new laws and policies being put into place each year, it shouldn’t surprise us that the fees change as well.
For example in December of 2016, the USCIS introduced a new fee schedule to a good portion of their visa forms and petitions. The fees from last year no longer apply, causing quite a few problems to those who failed to be updated on the new schedule.
Filing the wrong fees often results in a rejection, meaning that the petition never reached the decision-making stage and was sent back to the petitioner. However, there have been some rare cases in which the USCIS issued an outright EB-1C denial on account of insufficient fees. To avoid this delay, be sure to check the USCIS website for the latest fees or have your immigration attorney handle the fee payment.
2. Inconsistent Information
This reason may seem self-explanatory, but it deserves to be acknowledged in this list. While it remains a simple mistake, it’s one that many petitioners end up making. Double, even triple-checking your information can save you a great deal of headache in the future. Too many petitioners are concerned with getting their petition in as soon as possible and neglect to proofread their information.
The USCIS will either reject or deny your petition on account of incorrect, inconsistent, or missing information. This can cost you both time and money as the petition will need to be resubmitted with a new filing fee.
Avoiding this mistake is simple, make sure that each piece of information is accurate and matches the rest of your documentation. This is another problem that can easily be avoided by having an immigration attorney file your petition.
3. Criminal History/ Violation of Status
When you file your petition, the USCIS will conduct background checks to ensure that you do not have a criminal history in the U.S. or in your own country. Your case will also be examined to see if you have ever been in violation of your visa status in the past. If a crime or violation is found, then it goes without saying that your petition is likely to be denied depending on the nature and severity of the crime or violation.
While avoiding criminal activity is common sense, being in violation of your status may be more of a threat to your case. Overstaying your visa or being considered “out of status” can not only place a temporary bar on your entry into the U.S., it can damage your chances of obtaining visas in the future.
4. You Do Not Qualify
There are plenty of examples of companies that promote an underqualified worker to management for the sole purpose of obtaining a green card. Many of these are rejected due to the fact that the worker has not been a manager for at least one year and the fact that the worker lacks the necessary qualifications to effectively manage.
This may not be the case and you might be qualified, but your petition may still be denied if your qualifications are not apparent in your petition. To avoid this, be sure that your petition includes all of the necessary evidence pointing to your management ability.
5. InAbility to Pay Proposed Wages
Like many of the employment-based green cards, the EB-1C petition requires an offer of employment in order to qualify. That job offer must include the salary or wages that the company promises to pay you. In addition, your employer must demonstrate the capacity to pay you this wage.
According to the regulations, the way to prove that the wage can be paid is through showing the company’s net income, current assets, annual reports, federal tax returns, and financial statements. It also helps if you have already been making this wage during your employment with the company.
Failure to demonstrate that your employer is able to pay the proposed wage for your position is one of the more common EB-1C rejection reasons we see. Work with your immigration attorney to make sure all of your financial documents are in order.
6. Job Description Does Not Qualify
There are many things you can do to avoid an EB-1C denial, but this last reason seems to snag more petitioners than it should. The USCIS lays out what a manager or executive looks like in detail.
A manager should:
- Oversee the day-to-day work of employees, be in charge of their wages, and have the power to hire and fire.
- Supervise a function or department of the company.
An executive should:
- Supervise the work of managers within the company.
- Be able to make large decisions for the company without substantial supervision.
- Have the ability to create goals and policies for the company.
There are some positions that have the title of manager or executive (such as account manager) that do not require the employee to fulfill the tasks above. These positions do not qualify for this green card and attempting to apply through them will most likely result in an EB-1C denial.
7. Lack of Work History in Foreign Branch
One of the major issues we see comes when people are led to believe that the L-1A nonimmigrant visa directly translates over to an EB-1C. While the requirements are very similar concerning your qualifications and those of your employer, there is one key issue that is often overlooked.
To qualify for the EB-1C, you must have been working in a managerial or executive capacity in the foreign branch of your multinational company for at least one continuous year in the three years leading up to the EB-1C petition. This can present a real problem for those that have been living in the U.S. under L-1A status for the past 5-7 years. In order to meet the EB-1C requirement, you would need to return to your home country and work as a manager or executive in your company’s branch there for one year before petitioning.
On the other hand, if, for example, you had been working in your company’s foreign branch for several years before coming to the U.S. under L-1A status, you would have two years to still be eligible for the EB-1C. Speak with your immigration attorney to ensure that this requirement is properly understood.
EB-1C Denial Rate
The USCIS keeps a relatively outdated set of statistics on their website concerning the denial rates for certain green cards. In 2010, the EB-1A denial rate was 38% with 3,200 petitions being approved and 1,998 being denied. According to the chart, this denial rate is lower than most, sometimes even reaching over 50%.
The EB-1B denial rate is much lower, showing that in the same year, only 306 of a total of 3,140 petitions were denied with a calculated denial rate of only 9%.
Unfortunately, the chart does not give the statistics for the EB-1C denial rate. However, your immigration attorney may have a good idea of what your chances are based on their previous successes.
What to Do After an EB-1C Denial
If you heed the above reasons for denial and hire an immigration attorney, you will be setting yourself up for success. However, if you have already received an EB-1C denial and are looking for what to do next, there are some options to consider with your lawyer.
In almost all circumstances, you will have the opportunity to re-file with the USCIS. If you have filed your case either by yourself or with a different attorney, you may want to consider finding a new avenue for filing. If you obtain new evidence or had a simple mistake in your petition that resulted in rejection, re-filing may be the first move that you make.
If the denial was due to a more serious issue such as a lack of qualifications or a criminal history, simply re-filing will most likely only result in a second denial. In this case, new evidence of a change of circumstances would be required to take either of the two options below.
Can I Appeal?
There is a possibility that you can appeal the decision to a third party, but there are some caveats to consider. Appealing requires you to file with the Administrative Appeals Office (AAO) and can take a very long time to process. In addition to this, the AAO upholds the decision more often than not, meaning that time will be wasted.
Keep in mind that appealing is only available to applicants who are currently in the U.S. If you are denied by the consulate, you will most likely receive an EB-1C denial notice stating that the decision cannot be appealed.
If you do decide to appeal, do so with an attorney. Stepping into the realm of appeals is not to be done without an expert. Save yourself a substantial amount of time and trouble by getting legal help with your appeals.
Motion to Reconsider
Another option is to file a motion to reopen. This is a request for the original entity (i.e. the USCIS) to reconsider the case if new circumstances or evidence has arisen. This last part is essential. If you simply file a motion to reopen without presenting new evidence, your motion will likely be denied. Work with your attorney to find a way to bring new information to light.
You can also file a motion to reconsider your case, which means that you and your attorney believe that the decision to deny your case was made erroneously and that the evaluating officer should reconsider the decision. This is an equally delicate scenario and should not be done unless your attorney can produce a valid argument for the claim that the denial was in error.
Consider the Alternatives
Lastly, though it may not be ideal, you may want to contemplate switching your goal to a different green card. Even if you don’t qualify for an EB-1C, you still may be eligible for an EB-2 or and EB-3 green card.
EB-2: this green card is designed for those that fall into one of three groups
- Those that have advanced degrees (bachelors degrees or higher) that are relevant to their field of work.
- Those that can demonstrate exceptional ability in their field (not to be confused with the “extraordinary achievement” required for the EB-1A)
- Those that qualify for a National Interest Waiver. This is particularly useful for those that may or may not have an employer and wish to bypass the PERM Labor Certification process.
EB-3: this one is also meant for immigrants that fall into three groups
- Professionals (bachelors degree holders)
- Skilled workers (2+ years of experience)
- Unskilled workers or “other workers” (less than 2 years of experience)
You will need to check the priority dates for the alternative green card as the waiting times for the EB-2 and EB-3 can be much longer than the EB-1C.
How Our Immigration Attorneys Can Help
As we’ve said a few times in this article, the best way to avoid an EB-1C denial is to have an expert handle your case. At our office here at SGM Law Group, we find that the cases that get denied are almost always done without an attorney. With years of experience dealing with employment-based immigration, our lawyers can help you cross every “T” and dot every “i”.
From gathering evidence to support your case to handling the minutiae of filing, you can rest assured that your case is in the right hands. To get your immigration journey started or to receive help for your EB-1C denial, go ahead and fill out this contact form and let us schedule your consultation today.