2020 AILA Conference: Day 2, Session 4: Winning RFEs and NOID

[Tsang Intro Splash]

Hi everyone, this is Joseph Tsang from Tsang & Associates, and today we’re back at Day Two of the AILA Conference 2020. This is the first time AILA is doing this virtual conference, and I’m super excited to bring that to you.

Now, as a quick disclaimer, I’m only reviewing the ones I’m attending, and the opinions shared in the video are mine only, even though I am an AILA member. The opinions I share are not attributed to AILA or even to the speakers. I am summarizing what the speakers are saying and sharing my two cents on the topic.

If you don’t know what AILA is, it is the American Immigration Lawyer Association, the largest immigration lawyers association in the United States. Hundreds of thousands of attorneys gather together around the world to discuss these topics every year at this conference, and I’m super excited to get started.

[0:45] Here we are, Day Two, Session Four: “What Do You Do When You Get a Request For Evidence (RFE) or a Notice of Intent to Deny(NOID)?” Every year, there’s always this session where all the attorneys would gather and take their current requests for evidence, notices of intent to deny, or their recently denied cases and think about whether or not to do a motion to reopen and bring these to the answer floor and ask the speakers what they would do, what advice they would give. Over the years, we were able to learn so much, and this is one of those key sessions that alone is worth your money to go to the conference.

AILA University has invited some outstanding speakers on today’s subject, covering what you do when you have an L1 problem, H1 problem, and O1 problem. Now, this session contains a lot of case-specific answers to specific things that might not apply to everybody overall. So, what I’m also going to do is share some of the best secrets that I’ve learned when I came to these sessions from all the years past.

[1:36] We’ll start with specific pro tips for each of these case categories and then the general tips that cover all case categories.

The first one is the L1s, the executive transfers. L1Bs are constantly complicated, L1As are executive managers, and you constantly have to teach the officers what is a manager, how do you explain a functional manager? The speakers are mentioning that they use functional manager as a defense mechanism. They always just argue executive manager, and if you get a Request For Evidence, then you explain the functional aspect of it.

One of the best tips I got for preparing L1 applications is that there is a trend. Officers look at different things at different times. Sometimes, some years they’re really focused on the organizational chart or during the Request For Evidence, that’s what they’re looking for, and they tell you exactly what they’re looking for. If you know what they’re looking for and they’re asking for certain things in the Request For Evidence, then you can really go all out and not only provide the things contained in the Request For Evidence but everything that’s tangentially related to that.

For example, a couple of years ago, they were really heavy on organizational charts and job duties. Of course, job duties are essential, it’s always important, but in the previous years, they really focused on the detailed specifics of what you’re doing day-to-day. They want a weekly calendar, they want to see your planner, they want to see your Outlook spreadsheet, exactly what is it that you’ll be doing, who you’ll be meeting with, what are the projects you’re working on, what contracts you’re signing, etc. If that’s what stuff they’re looking for, then provide all those documents that are related to that.If that’s what stuff that they’re looking for then provide all those documents that’s related to that.

If they’re working… if they’re looking at work reports, that’s a completely different aspect, right? If they want to see what is the command structure like, what are the employees reporting to you, and how are you reporting to your boss, and how are they reporting to their boss? If they want to see those set of documents, that’s a completely different 20-30 sets of documents that you can provide.

[3:25] So the Request For Evidence and the Notice Of Intent To Deny is actually quite illuminating. It allows you to see what the officer is thinking. I know a lot of RFEs are just templates, but even within those templates, you can see where are the places that the officer actually typed in and asked questions. Find those places, find what questions that the officer is having. Then in your attorney brief, you can actually write, “This is what you ask, officer. This is what I’m assuming you’re seeking. Here are the documents that we’re providing, and this is how it explains everything and why our client is a functional manager, executive manager, or just a general manager.”

Maybe the organization only has four other employees other than the executive. Well, what are those employees doing? If they all have PhDs and they’re paid $200,000 salaries, then maybe lead with that. This is an elite team of scientists working on a particular research, and only an executive of this caliber can manage them. This goes back to really treating this as an art, really understanding what the client has to offer. You start out with maybe a hundred documentation and really examine what is this company, how do you explain it so a third grader can understand how this company is huge and how this executive is important, and why this is that gonna make America great, and then pull from the best documentation to prove that they are an executive. Don’t just do with the traditional checklist of, “Hey, give me your articles on corporation, give me your bylaws, give me your organizational chart, and give me your pay stubs, and we’ll submit it and we’ll argue our best.” No, you start with collecting everything and then you piecemeal it together to make the best presentation you can. It’s definitely a lot of work, but it’s worth it.

[4:58] Alright, next is the O-1 extraordinary ability visa. It’s kind of like the baby EB-1A. It’s really fun. The first pro tip is that it is extremely flexible. The comparable section where you can argue that this also is a comparable weight to the national awards, to the media publication. It doesn’t squarely fit in the traditional O-1 category, but it’s also super important, so please take a look at it. They’ve won a lot of cases just on the comparable section, which is awesome. And yes, it is extremely flexible.The original contribution section is very flexible. Right? How did you change your field? How did other people reference your work? 

Pro tip number two, use expert testimony as opposed to expert opinion letter. I know in immigration a lot of these terms get mixed up and they seem synonymous, but the speakers emphasize that if you use expert testimony when you submit your documentation, it’s a lot more forceful because then it falls under the federal court procedures. And if later on you need to contest and litigate this particular case, you can call your professors, your experts as witnesses, and that will be very, very strong for your case.

Pro tip number three for O1s is you want to put all your references and exhibits in the employment letter as opposed to the attorney brief because the officer can disregard the attorney brief, but if it’s the employment letter, this is exactly what the petitioner is providing and so they cannot disregard it.

Pro tip number four, think outside of the box. If you need to prove media publication, well maybe you could use Facebook, Instagram, TikTok, any other social media that really resembles and shows that there are lots and lots of likes for your clients. It might not be sufficient on its own, but it adds a lot of weight. Maybe there are only three media publications about your client and some of them seem weak, but on their Instagram account, they have 10,000 followers and 100,000 likes. Well, that will be amazing. Maybe your client only has three media publications and they’re not that great because it’s not really about the client, but their Instagram account: Everything that they post, they have hundreds of thousands of likes and shares and they have hundreds of thousands of followers. Well, that is pretty powerful.

[6:56] And one of the greatest lessons I learned about O-1 in the past is it’s the most flexible of all the visa categories. So there is a high chance you’re going to get a Request For Evidence because the officer just doesn’t understand. It’s like an EB-1A, but if they’re talking about business, that is a lot like an L-1A or an EB-1C, or it might be a performance, so it’s kind of like a P-1. It’s all sorts of visas. It’s kind of a catch-all in and of itself. So you really want to do a good job in explaining everything, and it’s totally okay when you get a Request For Evidence because that gives you the opportunity to explain. But you really want to find out what the officer knows and doesn’t know.

For example, in our application, we had to explain to the officer what being nominated for an Emmy was and how that was significant for this person to get an O1 application. You just can’t assume the officer knows anything.

[7:43] The third visa category are the H’s, the employment-based visas.The speakers do a great job in mentioning all the potential requests for evidence and noise that may challenge the applicant in getting H1Bs. They go in depth, talking about all the ways that you can litigate because H1B is highly litigious, and there are a lot of unreasonable denials. The same exact application from the same school, same position, same employer – one gets approved, one gets denied. Same salary. I mean, other than race, they’re pretty much the same. So they really emphasize litigation as a means to correct any wrong that you receive. They also mentioned that certain positions are just impossible, like market research analysts. It’s just extremely hard, and you can only win it through litigation.

All that may be true, but here’s one thing that I learned from this previous session that completely changed my worldview on preparing H1B applications. One of the previous AILA conferences broke down the entire H1B process. Basically, people are preparing applications, filing it, and since it’s a lottery, they’re just being randomly picked. So these officers are constantly getting subpar H1B applications, as opposed to L1s, O1s, EB1As – really substantial applications that they put a lot of time into. Each application traditionally has just been sloppily put together. Sometimes one paralegal is putting 600 applications together and filing it, and the quality of that is really just subpar. Maybe 10 exhibits.

[9:03] So if you completely change it and if you do a really thorough job, treat H1 applications like any other application, and really prove at length, you may see a different result. I took that advice to heart, and we did that with the market research analyst, arguably one of the most difficult positions to get qualified for because it’s just so broad and it’s business. Seemingly anybody qualifies for it. So USCIS just denies everybody blanketly, and then in litigation, when you have a lot more documentation, then they reverse the denial and approve the case. The results are actually quite amazing. After submitting it, yes, we might get a few requests for evidence, but in the documentation that we present, it gets approved.

And my advice is, have pity on these officers. They have all these applications. They don’t know any position in particular, and they have to adjudicate on everything. And the requirements are actually quite high. How are they supposed to do it if the things that were submitted, it’s only like five to ten documentation, an org chart, an employment offer letter? Like, how do they know if it’s real or not real, as opposed to an L1 application where people submit thousands of pages of documentation, right?

[10:06] And here’s pro tip number two for the H1 applications: Your client, the employer or the employee, is your friend. Get them involved, empower them. I don’t know how many H1B applications that I have had to re-file or do a motion to reopen or take over for a different employer because the documents that they were providing were just so weak.

A lot of attorneys, when you prepare applications, you think it is entirely your job to do everything, to make the arguments, and that’s it. But really, much of the work is actually on their end. Help the employer, help the employee know what they can do to help their case. Trust me, 150 percent, these employees with their life on the line, they’re willing to go without sleep for weeks to improve their chance of success, even if it’s a little bit. The only thing is, they just don’t know how. Show them, teach them, guide them, mentor them. Helping them a little will help you a lot and win better cases. And yes, it might require 10 times the amount of work as opposed to you doing it yourself, but if you teach them, maybe they will teach their co-worker when you’re filing their H1B application, and things will be a lot easier. But it is worth the time to teach them and enlist them onto your team.

[11:15] There are so many documents that you can provide in H1B applications that are not even talked about. For example, everybody knows you want to provide your diploma, you provide your resume, you provide your transcript to show your grades. Why stop there? Go deeper, right? Provide the syllabus for each of your classes, provide your final paper at your best class, provide other internship opportunities and their letters from the previous employers talking about how great of a job they did. Keep on going down, dig deeper. And then when you have all of these documentation, you can really show the officer, “Look, look at this person’s life and work and how outstanding they are.”

[11:50] Pro tip number three: Pretend the H application is an O application. Pretend they are extraordinary and then apply the rules accordingly. Yes, you have to prove that position is specialized, but talk about the publications, the citations, the original contributions. Look, talk about all those things that this individual is able to contribute to the U.S. company.

General Pro Tips:

[12:10] Alright, now let’s move to the pro tips generally. So the first one that I love is once you file the case, if you have an inkling that there’s a good 50% chance you’re gonna get a Request For Evidence, prepare your client for that. Let the client know, “Hey, look, a lot of these cases are getting Requests For Evidence. Once we get it, we might only have three months to prepare. I know it’s super important for you and you want to respond immediately. So, hey, look, here are the 10 different things that you might be requested to provide. You can start collecting it now or you start preparing for it.” Basically, set the stage and set the tone and let them be ready for it. Then when the Request For Evidence does come, then you can immediately jump in and deal with it and file response within a day or two days, and that will mean the world to the client.

[12:55] Pro tip number two: An RFE or NOID is an invitation to chat. It’s an invitation from the officer to try to understand your case more. It is not a straight up denial. And even if it’s a Notice Of Intent to Deny, it’s still an invitation to explain, help them understand. So, it is a work of communication, and the art of communication matters significantly. It is not just a checklist that you’re collecting documents and you’re sending it back. I have seen so many applications that are done this way. It doesn’t matter if it’s an H or O or a P or L, a lot of applications just put together a bunch of things that the officer wants, put it together and send it back.

It’s like if your spouse says, “Prove to me that you love me,” and all you say, “Well, I do dishes, I do this,” you just name off all these things, but you don’t take into consideration why are they saying that. You have to really address where that’s coming from, you have to address the confusion, and you have to persuade them. You cannot just throw things back at them, and you can assume that they’re going to read through everything because yes, it is their job, but it’s also their job that they can deny you because that is their discretion. So do a good job in communicating with a client.

[17:43] Now, what do I mean? Any chance you can get, provide pictures. A picture speaks a thousand words. Show different pictures in different situations. A lot of times, I just see bank statement without any explanation whatsoever. Well, what do you expect the officer to do? Look at the bank statement, see how much is in it, and infer, “Okay, that’s how much they have in the bank account. That means that adds that much to the asset, that means that is related to their revenue somehow, and that must relate to how excellent our client is, and therefore, they deserve an L1.” Like, what does that mean? Explain. “The average bank account exceeds 1.2 million. The company has sufficient funds to pay for the employee salary of $70,000.” Right? Help persuade and tell the officer exactly why you’re providing these documents and let them know that when they read through your documents, they easily are persuaded, are happy, and can approve your case. It’s an invitation to communicate. Help them.

[14:54] And the last pro tip, and this is just my own personal opinion, I know some people in my firm that may disagree, and other attorneys might disagree as well, but be nice and be gentle. I know how it feels when you spend a year preparing a case, you submit a thousand pages, and the officer gives you a Request For Evidence, and it looks like they have no understanding whatsoever, and they are just an idiot in your eyes, or worse yet, it’s clear that they didn’t read anything and they confused your case with somebody else’s, and it’s a boilerplate, and now the client is mad at you because they somehow think you didn’t do a good job, and the whole situation is a mess, and you just want to write this letter completely rebuking the officer.

I myself have been tempted to write a strongly worded letter as well. But at the end of the day, I always go back, revise it, give them the benefit of the doubt as much as possible, and in the nicest way, present the case again. Because, in my opinion, they do these day in and day out. When they review your case again three months down the line, they have no idea what you’re talking about, and suddenly they open it, and they might have had a bad night already last night, they might have gone to an argument with their wife, their kids, they’re having a bad day, they may have just been chewed out by the boss, they open up your package, your RFE, and it’s the first thing is you yelling at them. They might not even review anything, just deny you.

[16:14] Yes, you could do a motion to reopen, yes, you can litigate it in court, but you’re still dragged through the mud, right? It’s just not worth it. Give them the benefit of the doubt, write nicely, explain, “Here are all the things that you requested, and we’re kindly submitting everything again. It might have been damaged in the prior filing because it seems like it wasn’t referenced, but here we are resubmitting it for you, and we’ve done one, two, three, and four to help make it even easier for you. We always do that to try to make it better.” And in my experience, this actually helps a lot. Not to mention, it actually shows the client exactly what we’re doing, how we’re doing it, and let them know, “Hey, look, we totally submitted everything, but we’re just doing it again in a very nice way.” The difficult part is if the client is tempted to write a very strongly worded letter, and then you really have to decide if you want to allow them to do it or you’re going to dissuade them not to.

[17:02] And that’s it for this video on how to deal with a Request For Evidence or an intent to deny. Have a great rest of the day, and we have more videos coming your way.

Typically, at the end of each AILA session, all the attorneys will stay together, they will ask each other questions, they’ll talk to the speakers, they’ll exchange notes. But since this year’s AILA conference is held virtually, we’re not actually meeting and discussing. So if you have any questions about any particular topics that we covered in this video, please leave a comment below, let us know, email us, call us, we’ll be happy to discuss some of these nuances with you. It’s an extremely exciting time, and thank you for joining.

Take care, bye-bye.