How to Avoid Common Pitfalls for L-1, O-1, and NIW Petitions: Tips from Our Head Evaluator
By: Rachel Horner
While 2020 was a tough year for immigration, petitions continued to be filed, and attorneys are ramping up again to avoid the latest USCIS challenges—including for non-H1B options like the L-1A/B, O-1, and National Interest Waivers (NIW). Our expert evaluator, Howard Borenstein, gave a presentation detailing some of the more common mistakes made during these petitions that are likely to attract USCIS’s attention. Below we’ve highlighted some of the most important takeaways to remember for each of these petition types.
L-1A Petition: Discerning the difference between a Functional or Personnel Manager.
While the criteria for Managerial Capacity is fairly familiar to most attorneys, not every position fits the definition as neatly as USCIS demands. One thing that is frequently challenged by USCIS is whether the candidate will be acting as a Functional Manager or a Personnel Manager. Simply put, a functional manager primarily manages a critical component of an organization’s business, while a personnel manager more explicitly supervises and directs the work of people within the organization. The regular L-1A definition includes both aspects of management, but if only one or the other applies to your candidate, it’s important to properly define it in your petition, as USCIS will definitely issue a challenge if you pick the wrong one. For whichever option is chosen, it pays to make sure that the managerial tasks are laid out clearly in the position description for both the foreign position the candidate previously held, and the domestic position with which they hope to continue.
L-1B Petition: Knowledge should be “specialized,” but also specific.
When it comes to defining the specialized knowledge, don’t leave things up to USCIS’s interpretation or imagination—make it something tangible and describable, like a propriety software system, machinery, equipment, or sales portfolio, and don’t be afraid of detail. If the main argument in favor of the candidate is that they are exceptionally skilled on a general level, USCIS will not consider their knowledge to be specialized. USCIS wants to get as much insight into the candidate’s “specialized” knowledge as possible, and how the knowledge will be utilized in the position. For example, instead of simply saying that the candidate is experienced with machinery, the supporting documentation should ideally go into the depth on the complexities of said machinery, as well as how both the foreign and domestic role utilized this specialized knowledge.
Sometimes even the most detailed of company support letters won’t do the job of describing the company’s proprietary systems or technologies. For these instances, reaching out to vendors like Park Evaluations for an expert opinion letter allows for greater analysis and investigations into a candidate’s specialized knowledge, and is highly recommended.
Consider the criteria for an O-1 and EB-1 petition carefully—it can make or break you case.
While the criteria for an O-1 and EB-1 petition are similar, they are not interchangeable. Yet whichever set applies to a given petition, one thing remains constant—it’s important you select the criteria points you intend to prove carefully. On the most basic level, meeting any 3 of USCIS’s criteria points will suffice, but recent RFE trends suggest otherwise. For example, while not every candidate necessarily has won an award, USCIS tends to balk at designating a candidate as “extraordinary” if they haven’t made original contributions to their field of employment or worked in a critical function within an organization. Without either of those criteria, it is very likely (though never a full guarantee) that USCIS will reject the case. This petition may not be the best route for candidates who struggle to meet either or both of those two points.
And while it can be tempting to try and meet as many points of criteria as possible, it often pays to not overreach for a more borderline one that doesn’t fully apply to a particular candidate, as USCIS will often scrutinize the quality of the evidence submitted. Examples include listing professional organizations that are subscription-based rather than merit-based, listing company-wide awards as opposed to awards for individual achievement, or using articles published on the candidate’s company’s website instead of publications in independent scholarly or journalistic sources. To be sure, extraordinary ability is a high bar to clear, and it’s best to highlight the candidate’s strongest and most indisputable achievements.
Quality over Quantity: Find the right, not the most, evidence for an NIW.
A lengthy resume of degrees and experience is a great foundation for a strong case, but make sure you are highlighting the right portions of a candidate’s expertise related to the proposed endeavor. Contrary to the requirement for specialty occupation, which states in no uncertain terms that a candidate should have the minimum of a Bachelor’s degree (or its equivalent) in a related field, the NIW has far broader parameters for qualification, leading to a less narrow (but not necessarily more forgiving) burden of proof—simply put, it must be demonstrated that the candidate is “well positioned to advance the proposed endeavor,” which is “of national interest to the United States.”
Owing in part to this reason, a candidate’s academics are not always the most favorable option. In fact, unless the candidate has a PhD, relevant experience is usually a stronger argument, because many times, the candidate’s work will closely resemble what they intend to do in the US—and will depict knowledge far more advanced and less abstract or theoretical than a candidate’s coursework. The more unified and focused the evidence is—reference letters are a must, but a letter from an independent expert, which Park offers, can help as well—the more USCIS will be convinced that the candidate and the endeavor are a match, and that waiving the requirement of a job offer is worth it. And, in building the strongest possible bridge between endeavor and candidate, the importance of a coherent business proposal cannot be overstated, otherwise USCIS will not see how the endeavor is worthwhile on a national level.
While there is no “magic” petition that will guarantee anyone’s success, remaining aware of the different pitfalls that comes with each petition, and utilizing all available resources from trusted vendors like Park, whether it’s expert opinion letters, academic evaluations, investigative interviews, or certified translations, will help keep petitioners and attorneys one step ahead of USCIS.
For further insights, view Howard Borenstein’s full webinar here.