On Nov 18 2015 by William A. Stock

Immigration Petitions Increasingly Need Corroboration for Success

Legal practitioners and human resources professionals work together to prepare petitions for immigration benefits—temporary and permanent work permission—on behalf of employees. The statutory and regulatory standards for visa eligibility have not changed since the Immigration Act of 1990. Over the last several years, however, the expectation of the supporting documentation that needs to be included in these petitions has increased dramatically. Lawyers need to understand the new adjudications environment, and "up their game" to meet these new expectations.

As late as the mid-2000s, employers could expect that their petitions to U.S. Citizenship and Immigration Services (USCIS) would only need to be filed with evidence of the prospective employee’s educational credentials, plus a letter from the petitioner that explained the position offered and the employer’s educational or “specialized knowledge” requirements for the position. The employer’s support letter, considered by the regulations to be offered under threat of criminal liability for providing false information, was considered testimonial evidence sufficient to carry the employer’s burden of proof. The burden of proof is the petitioner’s obligation to satisfy the adjudicator that the beneficiary is eligible for the benefit being sought, and is normally met when the “preponderance of the evidence” presented with the petition establishes that it is “more likely than not” that the petitioner is offering a qualifying position to the beneficiary, and the beneficiary is eligible for the non-immigrant visa being sought.

With the U.S. unemployment rate rising in 2008 to 2010, employers began noticing an increase in requests for evidence (RFEs) in response to petitions they filed. These RFEs normally requested additional evidence establishing that the position offered was a “specialty occupation” or involved “specialized knowledge.” The employer would be asked to provide detailed breakdowns of job duties, percentages of time involved in the various job tasks, and explanations for how the position required knowledge gained in a bachelor’s degree (for specialty occupation, or H-1B, visas) or required “specialized and advanced” knowledge (for specialized knowledge, or L-1B, visas).

RFEs would also frequently request additional evidence over and above the employer’s testimony on the duties and requirements. The employer would be informed that the petition should be supported by other sources of evidence: job description documents; advertisements for the position from before the employee was hired; organization charts; and internal documentation such as performance reviews that might elucidate the skills required for the position. If the employer’s response was deemed insufficient, USCIS would deny the petition, usually explaining that the evidence had not met the employer’s burden of proving eligibility for the benefit being sought.

USCIS RFE and denial rates for H-1B and L-1B petitions rose sharply during these years, with over 50 percent of petitions receiving requests for additional evidence during some periods, and over 30 percent of petitions being denied. As employers learned the level of documentation that USCIS expected to receive and began increasing the amount of documentation they provided, the templates for the RFEs evolved and requested even more documentation in addition to the substantial volume that employers were now providing.

By imposing ever-increasing evidentiary requirements, USCIS sought to limit the availability of visas, even in the absence of any congressional change to the visa categories. Voluminous RFEs would ask for independent documentation (not created for the visa petition) to establish that the employee’s knowledge of the company or its products or processes is “special” or “advanced,” or that the work to be performed could only be done by a person who held a specific bachelor’s degree. RFEs suggested providing training certificates, syllabi of training courses completed by the employee, manuals, organization charts, employee reviews, resumes of other persons in similar roles, advertisements for open positions, and even samples of the work product of the employee to meet the employer’s burden of proving that the employee had “special” or “advanced” knowledge, or was a professional-level worker.

Even efforts to rein in the problem have enshrined the idea that the employer’s sworn statement is somehow insufficient to prove eligibility by a preponderance of the evidence. A USCIS headquarters memo earlier this year tried to rein in the adjudicators requesting voluminous documentation by issuing a memo that provided guidance to the adjudicators on eligibility for the L-1B visa category. The memo primarily addresses issues of legal interpretation (for example, that whether an employee’s knowledge is “special” should be determined in comparison to the industry as a whole, not in comparison to peers at the company). The memo also continues the trend of requiring that petitions contain documentary evidence of eligibility for the visa category beyond the employer’s explanation of the knowledge involved and the employee’s level of expertise. It suggests evidence of training and experience; contracts or other documentation that show the prospective L-1B’s knowledge is particularly valuable in the marketplace; correspondence or reports prepared by or about the individual; personnel and training records; and payroll/training documents, resumes of peers and organization charts to substantiate claims of an employee’s role in the organization, as if the employer’s sworn statement were not evidence enough.

The lists of “suggested” documents in the L-1B guidance memo and similar policy guidance is often more than employers would provide to a government adjudicator, particularly in regard to sensitive commercial information and proprietary technology. By requiring documentary evidence other than the employer’s testimony about the job offered and requirements for the position, USCIS also ignores a fundamental rule of evaluating evidence under U.S. administrative law: An agency cannot normally reject uncontradicted testimonial evidence, and uncontradicted testimonial evidence can meet the petitioner’s burden of proving eligibility for the benefit being sought.

Even though USCIS may be going beyond its statutory and regulatory mandate in imposing these evidentiary requirements, in the day-to-day rush of transferring or hiring workers from abroad, employers may have little choice but to comply with them as best as they are able. It is rarely worth the delay and expense to insist on a favorable adjudication based on the employer’s testimonial evidence alone, when the employer can provide some documentation and meet the higher burden placed on it. Because USCIS goes unchallenged in so many cases, it is unlikely to change its behavior in the short term, so employers should adjust their filing practices accordingly.

The experience of employers in petitioning for workers in the H-1B and L-1B categories demonstrates how, in the absence of any change in the controlling statute or regulation, the officials who adjudicate visa petitions can substantially change the number of individuals who will be considered eligible for a visa category, merely by adjusting the evidentiary requirements within the category. Employers who are seeking to use either of these visa categories to hire employees in the United States should be aware that USCIS will expect to see evidence such as contracts, technical manuals and client information from the employer’s normal course of business, even where the employer would prefer to keep such information confidential. The need to provide such documentation may lead employers to be more selective in whom they elect to transfer to the United States, and has increased the time and expense of preparing petitions on behalf of employees for whom visa sponsorship will be sought.

Reprinted with permission from the November 18, 2015 edition of the The Legal Intelligencer © 2016 ALM Media Properties, LLC. All rights reserved.

Further duplication without permission is prohibited. ALMReprints.com877-257-3382reprints@alm.com.