L1B RFE Success Rate: Improve Your Chances
There are a number of ways to approach your RFE to help improve your chances of attaining the visa and adding to the L1B RFE success rate.
Importantly – an L1B RFE is not a denial or indication of a denial. Put simply, it means the officer wants more information to be able to make their decision. It should be seen as an opportunity to supplement the initial submission and help sway the outcome in your favor.
L1B RFE success rate
Petitioners must be absolutely clear and convincing in their application that they qualify under all of the visa requirements. This includes showing that the role could not be performed by a US resident worker.
By issuing L1B RFE, the adjudicating officer is signalling that they do not have sufficient information or evidence to make a final decision on the application.
The RFE is then issued to the applicant requesting additional evidence and documentation be compiled and submitted within a prescribed timeframe.
Against the backdrop of protectionist US immigration policies, L visa petitions are facing heightened adjudicator scrutiny. It’s important for applicants to understand this context as it is heavily influencing application outcomes. Cases that would have been approved previously (certainly prior to the Trump Administration) are now being subject to RFEs and an increased visa denial rate.
The L1B scheme for intracompany transfers of specialized workers in particular is seeing increasing numbers of RFEs being issued to applicants, as authorities seek to determine whether a US resident worker could instead perform the work in question.
The challenge in securing an L1B is further compounded by changes in the requirement threshold, and L1B extensions which had been comfortably approved at the initial application stage are now potentially falling short at the extension stage.
For employers, this has created uncertainty when looking at HR and talent mobility and development programs. Employees see diminished opportunities for enriched experience and potential career progression resulting from temporary assignments in the USA.
These factors should be of primary concern when compiling your RFE response to USCIS.
How to respond to an L1B RFE
The RFE will identify USCIS’ specific areas of concern, and may list documents required to evidence eligibility. It will also specify the deadline to submit your response.
Failure to respond to the RFE by the deadline will result in determination of the case based on the information provided with the initial application.
Prospects of success will be improved where the employer and the employee alike are fully engaged with the application and provide the necessary information in full and on time.
Evidencing L1B eligibility
Common areas for RFE clarification include:
The L1B permits multinational employers to transfer qualifying non-US national employees to a US branch or affiliate to undertake roles requiring ‘specialized knowledge’.
What constitutes ‘specialized knowledge’ however is far from specific or clear. USCIS regulations define specialized knowledge as “special knowledge possessed by an individual of the petitioning organization’s product, service, research, equipment, techniques, management, or other interests and its application in international markets, or an advanced level of knowledge or expertise in the organization’s processes and procedures.”
A lack of clarity creates significant uncertainty for employers and employees alike when compiling the submission, and is also resulting in USCIS increasingly reliant on RFEs to request more information from petitioners to evidence eligibility under the requirements of the visa classification.
The application must show the employee qualifies with knowledge deemed either special or advanced. These have specific meanings under the L1B route.
Special knowledge relates to knowledge of the organization’s product, service, research, equipment, techniques, management, or other interests and its application in international markets that is distinct or uncommon in comparison to that generally found in the particular industry. Advanced knowledge is knowledge of or expertise in the petitioning organization’s specific processes and procedures not commonly found in the relevant industry and is greatly developed or further along in progress, complexity and understanding than that generally found within the employer.
USCIS uses a number of factors when evaluating the specialized knowledge test. Applications and RFE responses should be built to address these areas, such as whether the knowledge can ordinarily be gained only through prior experience with the petitioning organization or can be easily transferred or taught to another individual without significant economic cost or inconvenience because of substantial training, education or work experience required; if the knowledge is particularly beneficial to the petitioning organization’s competitiveness in the marketplace.
This is an inherently challenging part of the process as adjudicators are unlikely to possess already knowledge or insight into the market or organization that will equip them to make a decision. They must as such be convinced that the threshold has been met. Make no assumptions and take a granular approach to your evidence by breaking the knowledge aspects down into component parts.
Qualifying relationship between the US and multinational companies
Your application has to satisfy the adjudicator of the existence of a qualifying, bona fide relationship between the foreign company and the US office, branch or affiliate.
Where there have been recent changes in company structure, ownership or location, discrepancies may present which USCIS seek to be clarified with an RFE.
Documents could include bank statements, organizational structure charts, share certificates.
While a declining L1B RFE success rate may, at first glance, be off-putting for petitioners, it’s important to remember that applications continue to be approved, including where RFEs are issued. It’s a matter of responding in a way that supports your eligibility and highlights all of the relevant information that will support a positive determination.
Applicants are advised to take an objective perspective to the L1B petitions. While it may be obvious within the organization that the individual employee is critical to the US operation and possess the necessary knowledge, this must be adequately evidenced to USCIS or the petition becomes at risk of delayed processing via an RFE.
If you have a question about an L1B RFE, contact our team of specialist US immigration attorneys.
This article does not constitute direct legal advice and is for informational purposes only.