Chapter 9 - Adjudication

A. General Issues

Officers must carefully review each petition for an L-1 intracompany transferee to ensure compliance with the intent of the L-1 category to allow foreign businesses to transfer certain employees to their U.S. operations. Unless specifically provided otherwise, officers should apply a preponderance of the evidence standard when evaluating eligibility for the benefit sought.^[1] It is the petitioner’s burden to prove eligibility for the benefit sought.^[2]

B. Evaluating Primary Evidence

There are various categories of evidence routinely submitted to document an organization’s business activities. The submission of what USCIS considers to be credible evidence is not equivalent to meeting the eligibility criteria. In other words, the petitioner may submit a tax return and it may be considered credible evidence, but the information provided on the tax return may fail to establish that the eligibility requirement has been met.

Primary evidence of an organization’s business activities should corroborate the statements made in the petitioner’s letter. In the instance where documentation conflicts with the petitioner’s statements, the officer should request further clarification, along with corroborative documentary evidence.

Requests for Evidence

A Request for Evidence (RFE) may be appropriate when the initial review of the record does not establish that the petitioner has met all the eligibility requirements.^[3] In addition, an RFE^[4] should be sent where:

• The record contains evidence of material fraud or misrepresentation; or
• The officer has knowledge of previous mala fide petitions from the same petitioner.

The RFE should:

• Identify each of the areas of eligibility the petitioner has not met;
• Discuss what is deficient with any evidence already provided; and
• Provide examples of evidence that the petitioner could provide to meet the area of eligibility.

C. Special Adjudicative Issues

1. Iran Sanctions

Executive Order 12959^[5] imposed economic sanctions against Iran that prohibit, among other things, the importation of Iranian services where the noncitizen is performing such service as an agent, employee, or contractor of the Iranian government or a business or other organization in Iran. However, a Petition for a Nonimmigrant Worker (Form I-129) for an Iranian citizen may be approved if the Iranian is:

• Not normally a resident of Iran; and
• Not working in a way connected to:
  • The Iranian government (excluding diplomatic and consular services);
  • An Iranian business;
  • An Iranian organization; or
  • Any person located in Iran.^[6]

2. USMCA (formerly NAFTA) Petitions

Petitions filed pursuant to the North American Free Trade Agreement (NAFTA) were forwarded, and U.S.-Mexico-Canada Agreement (USMCA) L-1 petitions from ports of entry (POEs) continue to be forwarded, from U.S. Customs and Border Protection (CBP) to USCIS.^[7] These petitions have already been adjudicated, all the information on the petitions (including the approval stamp) has been completed, and the beneficiaries have already entered the country.^[8]

The U.S.-Mexico-Canada Agreement

USMCA is a trade agreement between the three countries named in the agreement and replaces NAFTA. The USMCA entered into force on July 1, 2020.^[9] The USMCA does not make any changes to the immigration chapter of NAFTA. Even though the USMCA replaces NAFTA, the USMCA retains all substantive elements of the former NAFTA, as well as all other classifications.^[10]

D. Decision

1. Approvals

An approval is appropriate if the necessary supporting documents are present, and the petition appears to be approvable in all respects. The initial approval period is up to 3 years, except that, if the petitioner is a new office, the approval period is limited to 1 year.^[11]

A blanket petition may be approved for an initial period of 3 years and may be extended indefinitely afterwards if the qualifying organizations have complied with the program requirements.^[12]

Extensions of stay are granted in 2-year increments. The dates of employment (admission and extension periods), however, must be within the statutory limits for the L nonimmigrant classification: 7 years for executive and managerial employment (L-1A nonimmigrants), and 5 years for specialized knowledge (L-1B nonimmigrants).

2. Revocations

USCIS may revoke a petition at any time, even after the expiration of a petition.^[13] USCIS must send the petitioner a notice of intent to revoke the petition based on one or more of the following grounds of revocation:

• One or more entities are no longer qualifying organizations;
• The beneficiary is no longer eligible under INA 101(a)(15)(L);
• A qualifying organization violated the requirements of INA 101(a)(15)(L) and 8 CFR 214.2(l);
• The statement of facts contained in the petition was not true and correct;
• Approval of the petition involved gross error;^[14] or
• None of the qualifying organizations in a blanket petition have used the blanket petition procedure for 3 consecutive years.^[15]

USCIS must consider all relevant evidence in deciding whether to revoke the petition.^[16]

3. Denials

Notice of Intent to Deny

When an adverse decision is proposed based on the evidence submitted by the petitioner, USCIS may notify the petitioner of the intent to deny the petition and the basis for the denial.^[17] In that situation, the Notice of Intent to Deny (NOID) specifies the basis for the proposed denial sufficient to give the petitioner adequate notice and sufficient information to respond.^[18]

When an adverse decision is based on derogatory information considered by USCIS and of which the petitioner is unaware, USCIS must notify the petitioner of the intent to deny the petition and the basis for the denial.^[19]

USCIS provides exactly 30 days from the date of the NOID for the petitioner to inspect and rebut the derogatory evidence.^[20] Any explanation, rebuttal, or information presented by or on behalf of the petitioner shall be included in the record of proceeding.^[21]

The NOID should contain:

• A statement that identifies the specific areas of eligibility that the petitioner does not appear to have met;
• A description of the specific reasons for the determination that the areas of eligibility have not been met; and
• A discussion of the most persuasive evidence the petitioner could submit to overcome the reasons for denial.

Denial Notices

If USCIS denies the petition, USCIS provides a notice that includes the reasons for denial and any rights to appeal the denial.^[22]

The denial order should discuss all areas of eligibility not met by the petitioner and include a description of the reason or reasons for the determination.

In cases involving an extension of stay or change of status request, USCIS may find the nonimmigrant petition warrants approval, but the evidence of record reveals that the beneficiary is ineligible to extend or change their nonimmigrant status. In these instances, a separate denial notice must be prepared that addresses the ineligibility of the beneficiary for the requested change or extension of stay.^[23]

Footnotes

[^ 1] See INS v. Cardoza-Fonseca (PDF), 480 U.S. 421 (1987) (defining more likely than not as a greater than 50 percent probability of something occurring). See Matter of Chawathe (PDF), 25 I&N Dec. 369, 376 (AAO 2010) (citing Matter of E-M- (PDF), 20 I&N Dec. 77, 79-80 (Comm. 1989)).

[^ 2] See Matter of Brantigan (PDF), 11 I&N Dec. 493 (BIA 1966). ​

[^ 3] For a full discussion on RFEs, see Volume 1, General Policies and Procedures, Part E, Adjudications, Chapter 6, Evidence, Section F, Requests for Evidence and Notices of Intent to Deny [1 USCIS-PM E.6(F)].

[^ 4] Officers may issue a Notice of Intent to Deny (NOID) consistent with USCIS guidance.

[^ 5] See Prohibiting Certain Transactions with Respect to Iran (PDF), 60 FR 24757 (May 6, 1995).

[^ 6] See 31 CFR 560.306(d).

[^ 7] Filing of L-1 petitions for Canadian citizens under NAFTA may be made at a class A POE located on the United States-Canada land border or United States pre-flight station in Canada. See 8 CFR 214.2(l)(17)(ii).

[^ 8] From April 30, 2018 to April 30, 2020, the California Service Center and the CBP Blaine, Washington POE participated in a joint agency pilot program for Canadian citizens seeking L-1 nonimmigrant status under NAFTA.

[^ 9] See the United States-Mexico-Canada Agreement Implementation Act, Pub. L. 116-113 (PDF) (January 29, 2020).

[^ 10] For example, the TN designation continues to be used for NAFTA-USMCA professionals. TN admissions under NAFTA were governed by the list of professionals in Appendix 1603.D.1 to Annex 1603 of NAFTA. Under the USMCA, TN admissions are governed by the (identical) list of professionals in USMCA, Chapter 16, Appendix 2.

[^ 11] See 8 CFR 214.2(l)(7)(i)(A).

[^ 12] See 8 CFR 214.2(l)(7)(i)(B).

[^ 13] See 8 CFR 214.2(l)(9)(i).

[^ 14] See 8 CFR 214.2(l)(9)(iii)(A).

[^ 15] See 8 CFR 214.2(l)(9)(iii)(A).

[^ 16] See 8 CFR 214.2(l)(9)(iii)(B).

[^ 17] See 8 CFR 103.2(b)(8)(iii) (explaining that USCIS may deny the petition, issue an RFE, or notify the petitioner of the intent to deny). For more information, see Volume 1, General Policies and Procedures, Part E, Adjudications, Chapter 9, Rendering a Decision, Section B, Denials [1 USCIS-PM E.9(B)].

[^ 18] See 8 CFR 103.2(b)(8)(iv).

[^ 19] See 8 CFR 103.2(b)(16)(i).

[^ 20] The applicant has up to 3 more days after the 30-day period for responding to a NOID in cases where USCIS has mailed the request. See 8 CFR 103.8(b). For more information on timeframes and responses to Requests for Evidence and Notices of Intent to Deny, see Volume 1, General Policies and Procedures, Part E, Adjudications, Chapter 6, Evidence, Section F, Requests for Evidence and Notices of Intent to Deny [1 USCIS-PM E.6(F)].

[^ 21] See 8 CFR 214.2(l)(9)(iii)(B).

[^ 22] See 8 CFR 214.2(l)(8)(ii).

[^ 23] There is no appeal from the denial of an application for extension of stay. See 8 CFR 214.1(c)(5).