CHAMBER OF COMMERCE OF THE

UNITED STATES OF AMERICA 1615 H STREET, N.W. WASHINGTON, D.C. 20062

RANDEL K. JOHNSON

AMY M. NICE

SENIOR VICE PRESIDENT LABOR, IMMIGRATION, & EMPLOYEE BENEFITS

EXECUTIVE DIRECTOR IMMIGRATION POLICY

July 31, 2015 FILED VIA ELECTRONIC MAIL [email protected]

U.S. Citizenship and Immigration Services Service Center Operations Directorate Customer Service and Public Engagement Directorate 20 Massachusetts Avenue NW Washington, DC 20529-2140 Re:

Draft Template Request for Evidence (RFE) for L-1B Visa Petitions L-1B RFE Notice for Comment (July 17, 2015)

Dear Sir or Madam: The U.S. Chamber of Commerce (“Chamber”) is the world’s largest business federation. The Chamber represents the interests of more than three million businesses and organizations of every size, sector, and region, as well as state and local chambers and industry associations, and is dedicated to promoting, protecting, and defending America’s free enterprise system. We are writing in response to the draft template for Requests for Evidence (or RFE) in L-1B visa petitions that U.S. Citizenship and Immigration Services (“USCIS”) posted on July 17th allowing the public a two week period for comment. The Chamber has never previously commented regarding any of USCIS’s proposed templates for Requests for Evidence, because the Chamber does not get involved in case-by-case adjudication issues. Unlike other RFE templates, however, the agency’s proposed L-1B RFE directly impacts the very essence of the governing policy for the L-1B visa category, a classification where the Chamber’s member companies have significant and unified concerns about USCIS’s policies. The Chamber has a significant interest in the controlling L-1B adjudications policy because many of our members – small, medium, and large – are multinational enterprises that use the L-1B visa classification. In particular, many American employers with name recognition as leading innovators and a long record of corporate compliance are members of the Chamber and are global companies that rely on the flexibility of the L 1B classification to manage their own internal human resources, just as Congress intended in creating the L-1B classification in 1970.

U.S. Citizenship and Immigration Services Comments of the U.S. Chamber of Commerce on L-1B Requests for Evidence July 31, 2015 Page 2 of 5 THE DRAFT L-1B RFE TEMPLATE SHOULD NOT BE ISSUED BEFORE A REVISED L-1B ADJUDICATIONS POLICY

First and foremost, the Chamber is surprised, and very disappointed, that the agency would propose how its adjudicators should handle RFEs for L-1B visa petitions before finalizing its guidance to those same adjudicators as to the standards for evaluating those same visa petitions, prior to determining if an RFE is warranted. For now 3½ years (since January 30, 2012), USCIS has publicly been stating to stakeholders that the agency would revise and update its L-1B guidance. The agency’s prior L-1B guidance documents were issued more than a decade ago and the primary policy guidance document was issued in March 1994, more than 21 years ago. Now, prior to issuing the promised new L-1B Adjudications Policy, the agency has issued its draft instructions to USCIS adjudicators that will formalize the specifics of how the agency will issue requests for additional evidence in visa petitions filed at the agency. The notation on the draft RFE template that the agency is still reviewing stakeholder feedback regarding the L-1B Adjudications Policy is in no way sufficient to undo, or dilute, the inappropriateness of issuing the draft RFE template prior to the new guidance. At a minimum, this creates the appearance that the agency has no commitment to taking into account any of the input from the various stakeholders that submitted comments regarding the governing adjudications policy, including different viewpoints reflected in comments by each worker and business groups. No public engagement process should be run this way. We hope the agency will commit to future avoidance of this approach. The agency’s ability to use policy guidance as an alternative to rulemaking would seem to be intrinsically reliant on its commitment to at least consider public comments, in order to comply with Office of Information and Regulatory Affairs Memorandum on Implementation of the OMB Bulletin on Good Guidance Practices and Executive Order 13422 (amending Executive Order 12866). UNWORKABLE FEATURES OF THE PROPOSED L-1B RFE NOTICE

There are several aspects of the draft L-1B RFE template which are unworkable, leading to more inconsistency in L-1B decision-making and reflecting critical flaws. In particular much of the text on pages 9-16 of the RFE template does not reflect the real-world reality that much of “specialized knowledge” cannot be proven by independent, outside evidence and that the petitioner’s statement must be given weight. Moreover, references to and consideration of wages in the RFE template are misplaced. Evidence. We understand the tension between USCIS’s preference for receiving thirdparty, independent, objective evidence confirming a statement by the business and, on the other hand, the business reality that many of the business needs requisite to explaining the specialized knowledge in play as well as the facts and circumstances of the alien beneficiary’s L-1B eligibility cannot be proved by third-party, independent, objective evidence. Surely there is a legitimate interest by USCIS to prefer corroborating evidence so that it can more reliably and accurately determine if it is “more likely than not” that the petitioning employer claims are in fact the case. Equally clearly though, it is not reasonable, or a reliable way of assessing the facts, to ask a business to manufacture evidence disconnected from the normal course of business or to

U.S. Citizenship and Immigration Services Comments of the U.S. Chamber of Commerce on L-1B Requests for Evidence July 31, 2015 Page 3 of 5 attempt to prove independently what can only logically be proven by giving careful consideration to the business’s own sworn statements. For reasons not understood by the Chamber, USCIS’s draft L-1B RFE template establishes that the sworn petitioner’s statement can never be sufficient and that no adjudicator has the authority to approve eligibility for L-1B classification based on a sufficiently detailed petitioner’s statement. The RFE template, therefore, disregards the fact that the required petitioner’s statement that must accompany Form I-129 when seeking L-1B classification is itself a sworn statement. The Form I-129 instructions, which pursuant to 8 CFR §103.2(a)(1) have the force and effect of regulation, specifically provide that by signing the Form I-129 the petitioner employer also attests to the truthfulness of the petitioner’s statement (and other filed documents). The form instructions, at p. 19, provide “By signing this form, you have stated under penalty perjury (28 USC §1746) that all information and documentation submitted with this form is true and correct.” Furthermore, the general prohibition against knowingly and willingly signing any government form with false information also applies, and criminal penalties attach, pursuant to 18 USC §1001. In the case of L-1B nonimmigrant visa petitions, the signature by the petitioning employer on the government form signifies an attestation to the other statements submitted with the form – so §1001 is best understood to apply to the petitioner’s statement as well. Such sworn statements are entitled to some weight. Thus, at a minimum the RFE template must reflect an obligation on the part of the adjudicator to explain that the petitioning employer’s statement was evaluated and identify why it is not detailed and thorough enough to warrant petition approval, especially when provided by a well-established and reputable employer. In other words, the RFE template must reflect that the petitioner’s statement has evidentiary value, while also establishing that sweeping statements without sufficient, itemized particularity that show the basis for such statements cannot be considered competent evidence. The L-1B RFE template must establish that where the petitioner’s sworn statements are detailed, specific, and credible, and adequately place the beneficiary’s knowledge within the context of the employer’s specific and well-explained business need, adjudicators should not issue requests for further evidence or deny petitions merely because the petitioner has not provided additional third-party evidence, unless the petitioner’s attestations are mere conclusory statements or unless the record contains evidence that weighs against eligibility. Wages. Outlier wage levels have always been a relevant touchstone for adjudicators in considering L-1B qualifications – when a beneficiary will be paid either very high or very low wages this is a relevant review point in either affirming eligibility or raising questions about eligibility. This is quite different than issuing an invitation to adjudicators to inquire about and receive independent objective evidence of the wages paid, which the L-1B RFE template incorrectly does. In addition to the fact that there is no clear legal authority to focus adjudicators’ attention on wages, in practice wages are largely irrelevant to the determination of whether a beneficiary possesses specialized knowledge. An increased focus on wages would not improve either the quality or consistency in L-1B decision-making. This fact is underscored by four recent

U.S. Citizenship and Immigration Services Comments of the U.S. Chamber of Commerce on L-1B Requests for Evidence July 31, 2015 Page 4 of 5 decisions received by a large, name-recognized American company noted for its contributions to the high-tech sector: 

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Denial. Employee maintaining valid L-1B status was denied an L-1B extension. On the U.S. payroll receiving a salary of $147,000. Over 18 years of professional experience, 11 years of industry experience before joining the company, 7 years of experience with the company including work with a company acquired by the petitioning employer. Denial. Employee earning the equivalent of $25,000 annually (not including housing, transportation and other expat benefits when on assignment in the U.S.). Over 5 years with the company and played a key role in developing the company’s “application development framework.” Approval. Employee earning the equivalent of $10,000 annually (not including housing, transportation and other expat benefits when on assignment in the U.S.). A little over one (1) year of experience with the company. Expert in formulating and leading strategy and process. Focused on large and complex scenarios that required creative and complex solutions applying the company’s methods and techniques. Approval. Employee on the U.S. payroll earning $52,000 annually. A little over one (1) year of experience with the company. Received in-house training on proprietary methods. Authored several white papers. Specialized in French language and multi-lingual technical sales.

As these examples highlight, wages are not the driving factor in agency decision-making and may not even be “a” factor in most cases. For this reason, and because we are not aware of the legal authority to conduct the type of wages inquiry suggested in the draft L-1B RFE template, the Chamber suggests that the references to wages be dropped CONCLUSION

The Chamber made clear in its feedback on the proposed L-1B Adjudications Policy that the effective date of the new Policy Memorandum on L-1B Adjudications Policy be pushed back as much as needed should the agency be unable prior to August 31st to revise the final guidance while also allowing sufficient time for training on the revised terms of the final guidance, including RFE issuance. To the extent USCIS is serious about considering public comments regarding the L-1B RFE Notice, stakeholder comments regarding the parameters of L-1B Requests for Evidence can only be prepared by stakeholders in light of a final L-1B Adjudications Policy. There is no way any member of the public can provide useful comments regarding the substance of a proposed Request for Evidence without knowing and having time to evaluate the RFE proposal in light of final L-1B Adjudications Policy. Thus, a new L-1B RFE template should be published for public comment when the agency issues new controlling L-1B guidance.

U.S. Citizenship and Immigration Services Comments of the U.S. Chamber of Commerce on L-1B Requests for Evidence July 31, 2015 Page 5 of 5 USCIS should push back the August 31st effective date of any new guidance, given that the public should be given time to comment on the L-1B RFE Notice and the agency should have sufficient time to train its officers regarding any new guidance, including training regarding a new L-1B RFE template. Thank you for any consideration you can give to the Chamber’s concerns. Sincerely,

Randel K. Johnson Senior Vice President Labor, Immigration and Employee Benefits

Amy M. Nice Executive Director Immigration Policy