EB-1 Petition and RFE Response
This article will discuss the guidelines and requirements for an EB-1 Multinational Executive or Manager green card petition. It will also provide information on what to expect if you receive a Request for Evidence (RFE), how to respond and what to do if your petition is denied. RFE’s are time sensitive and require a thorough assessment and meticulous work. It is important that an attorney assist you on these matters.
Employer Requirements for EB-1 Green Card Petition
- Employer must be a legal entity;
- Employer must file the petition for the beneficiary;
- The employer needs to have done business in the U.S. for at least one year; and
- Both the U.S. and foreign division must be doing business on a regular, systematic and continual basis.
Employee Requirements for EB-1 Green Card Petition
- The beneficiary must have worked for the company at a managerial or executive position for at least one year in the preceding three years at the time of filing;
- The beneficiary must continue to work for the same employer or affiliate as a manager or executive; and
- The beneficiary must be qualified for the position.
Beneficiary Guidelines to Qualify as a Manager
- Manages the organization, department, or component/division of the organization;
- Supervises and controls the work of other managerial, supervisory or professional employees or manages an essential function of the organization;
- Authorizes hiring and firing and oversees other personnel actions;
- Functions at a senior level at the organization; and
- Directs the day-to-day operations of the function or activity which they have authority
Beneficiary Guidelines to Qualify as an Executive
- Directs the management of the organization or major function of the organization;
- Establishes the organization or function of the organization’s policies and/or goals;
- Acts as a key decision making for the organization;
- Receives only general supervision from higher level executives or members of the organization.
Who Does Not Qualify as a Manager or Executive?
- A person who performs tasks that are necessary to produce a product or provide a service; or
- A person who performs operational tasks to develop, design, sell, or market their products;
Other considerations for EB-1 petitions include how many employees the managerial/executive employer have and the nature of the business.
Request for Evidence for a EB-1
The United States Citizenship and Immigration Services (USCIS) issues a Request for Evidence (RFE) when there is not enough supporting evidence to determine a decision. Petitioners will receive a deadline (generally within 60 days) by when they must respond to a RFE. By failing to respond, petitioners risk their petition being denied. All evidence requested by a RFE must be submitted at one time.
RFE’s may be issued if the EB-1 case was not clearly approvable. It is not uncommon that after submitting a petition for EB-1 that a RFE will be issued.
Notice of Intent to Deny for an EB-1
The USCIS may issue a Notice of Intent to Deny (NOID) when they intend to deny a petition. A denial of the petition may be prevented if the petitioner responds to the NOID within the deadline given (usually within 60 days) and provides the extra documentation requested.
Common Reasons for a Denial
- Failure to establish evidence that the beneficiary was employed in a managerial or executive capacity abroad;
- Failure to establish evidence that the petitioner would employ the beneficiary in a managerial or executive capacity; or
- Failure to establish evidence that the employer was able to pay the salary offered.
It is important for the petitioner to provide a detailed job description, including tasks and responsibilities including the percentage of time spent on daily tasks. This is to show evidence that the beneficiary is not performing non-qualifying duties.
Examples of supplemental documents requested by the USCIS on a RFE:
After review, the USCIS adjudicator may issue a RFE, instructing the petitioner to provide the following documents:
- Federal tax returns;
- IRS Form W-2;
- A wage and tax statement for beneficiary and all employees at the organization;
- An organizational chart of the corporate hierarchy illustrating the beneficiary’s position;
- Brief job descriptions and educational levels for the beneficiary’s subordinates;
- description of the beneficiary’s foreign and proposed employment, including job duties and a percentage breakdown of time spent on daily tasks;
- Information on the facilities hours of operation and employee roster/scheduling; and
- Details on the proposed U.S. position responsibilities.
Requirements for a EB-1 Green Card Petition
- There must be an active U.S. company or organization operating regularly. It must be established for at least one year. Evidence to support this: business registration, lease, business expense receipts, contracts, etc.;
- There must be an active foreign company or organization operating regularly. It must remain active at least until the green card petition is approved.
- The foreign and U.S. employer must be related entities. Evidence to support this: who owns the U.S. and foreign employer, income tax returns and stock receipts, etc.;
- The applicant must have worked for the foreign employer for at least one year as a manager or executive. Evidence to support this: payroll, tax forms, etc.;
- Applicant must work for U.S. employer as a manager or executive once green card is approved. They must prove that they will be filling a senior position. Evidence to support this: reference letters, resume, diplomas etc.;
- Petitioner must establish eligibility at the time of filing; and
- The U.S. company must prove it can pay the offered salary. Evidence to support this: tax returns, net income, payroll, bank records, statements from financial officers, etc.
If the EB1 Petition is Denied After a RFE
- File an EB-1 petition again or file in another category. A denied EB-1 petition does not bar you from reapplying;
- File a Motion to Reopen. This is a request to the USCIS officer to review the decision. This motion must be based on factual grounds. You must show that either the evidence was not material, the required evidence was already submitted with the petition, requested additional evidence was submitted during the allotted time, or that the RFE was not sent to the address of record; or
- File a Motion to Reconsider. This is a request to the USCIS officer to review the decision based on new or additional legal arguments. It must be established that the decision was incorrect based on the evidence on record at the time of the decision.