Business Immigration Insights

Are you frustrated with the increasing level of documentation required to support employment-based immigration filings? You are not alone.

Gone are the days when a company letter and organizational chart were enough to support an L-1A manager case or just quoting the Occupational Outlook Handbook was enough to demonstrate specialty occupation status for an H-1B petition. US Citizenship and Immigration Services (USCIS) now requires pages and pages of supporting evidence for all employment-based filings, including I-129 nonimmigrant petitions for L-1 or H-1B status and I-140 immigrant petitions for multinational executives and managers. Immigration law firms, scrambling to keep up with the government’s ever-changing adjudications standards, increasingly turn to clients’ HR contacts and employees with requests for voluminous amounts of initial and additional evidence.

Below are answers to some frequently asked questions our firm has received regarding this issue:

My friend’s case was approved without extensive documentation. Why do I need to provide it?

Does your friend work for the same employer? In the same position? Does your friend have the same education as you? Each case is different. Each requires a different strategy and therefore, different amounts and types of documentation. USCIS scrutinizes certain occupations and industries more closely than others. Smaller companies also endure more scrutiny, but even large multinational companies are not immune to the government’s whims. In fact, those whims illustrate the last reason your friend’s case could have been approved with minimal documentation — luck. Despite the government’s recent efforts to standardize adjudications across officers and service centers, huge discrepancies still exist in outcomes. Strong cases are denied and weak cases are approved, for no apparent reason other than a single officer’s discretion.

We filed the initial petition three years ago, and it was approved without documentation. Why do we need to provide it now? Have the laws changed?

While immigration laws and regulations have not significantly changed, the agency’s adjudications policies and procedures have. USCIS no longer accepts as fact statements made by a petitioning employer in company support letters. All such statements must be backed up by documentary evidence.

The original petition was filed with extensive documentation. Why did USCIS issue a Request for Evidence asking for even more documents? Did USCIS lose my documents?

Possibly, but some occupations will almost always receive an RFE no matter what is submitted up front. While we are aware of no reliable evidence that USCIS officers have an RFE quota, there is much speculation that they do. We do know that the Trump administration is concerned by the generally high approval rate for immigration cases and is using the “Buy American, Hire American” executive order to scrutinize petitions through increased RFEs in order to decrease legal immigration. In addition, in cases filed using the USCIS 15-day premium processing service, RFEs may be issued on the 13^th or 14^th day to give officers more time to process their caseloads.

What if we do not provide any documents? Will the case still be approved?

Possibly, but why take the chance? When cases are denied, there can be severe consequences for nonimmigrant workers and any family members dependent on their immigration status. Denials jeopardize the ability to legally remain and work in the United States. Like RFE rates, denial rates have also increased considerably in recent years, mainly due to a new USCIS policy to outright deny cases for lacking initial evidence at the time of filing.

Why do I need to provide the documentation? Can’t the paralegal/attorney gather it for me? 

We gather as much as we can, but we are not familiar with every occupation. Employees, their hiring managers, and their companies are the ones who know best what the job involves on a daily basis and what education and experience are required to perform those duties.

The next time your immigration lawyer or paralegal sends a lengthy email requesting clarification of duties or additional evidence to back up a case, know that they are not being difficult. They simply want to do everything possible to ensure that the case will be approved.

If you have specific questions about your case, please contact an immigration lawyer.