Tag Archives: Request for Evidence

Updated Policy Makes It Easier for USCIS to Deny Petitions and Applications Without First Issuing a Request for Evidence (RFE) or Notice of Intent to Deny (NOID)

As of September 11, 2018, an updated policy will make it easier for USCIS to deny a petition, application or request without first issuing a Request for Evidence (RFE) or Notice of Intent to Deny (NOID) if initial evidence is not submitted or if the evidence in the record does not establish eligibility for the benefit sought. The new guidance applies to all petitions, applications and requests (except for Deferred Action for Childhood Arrivals/DACA cases) received by USCIS after the effective date.

The policy memorandum (PM), dated July 13, 2018, rescinds the prior June 3, 2013 guidance implementing the “no possibility” policy and restores to the USCIS officer full discretion to deny petitions, applications and requests without first issuing an RFE or a NOID, when appropriate.  According to USCIS, this policy aims to discourage frivolous or substantially incomplete filings used as “placeholder” filings and encourage petitioners, applicants and requestors to collect and submit required evidence in the initial filing.

The prior 2013 PM provided that RFEs should be issued unless there was “no possibility” that additional evidence might cure the deficiency and lead to an approval. Thus, in practice, it limited denials without RFEs or NOIDs to requests where an adverse decision was mandatory under law (e.g. statutory denials such as when an applicant requests a benefit that no longer exists).

The updated policy provides guidance as follows:

Statutory Denials

USCIS will continue issuing statutory denials, when appropriate, without first issuing an RFE or NOID. This includes filings when the applicant, petitioner, or requestor has no legal basis for the benefit sought, or submits a request for a benefit under a program that has been terminated.

If all required initial evidence is not submitted with the application or petition, USCIS may exercise its discretion to deny the benefit request for failure to establish eligibility. Examples include:

  • Waiver applications that require a showing of extreme hardship to a qualifying relative (U.S. citizen or permanent resident spouse or parent), but there is no evidence of a qualifying relative and the applicant is claiming extreme hardship to another relative (e.g. U.S. citizen child).
  • Family-based immigrant petitions filed for relatives that do not fall under any of the family-based categories.

Denials Based on Lack of Sufficient Initial Evidence

USCIS, in its discretion, may deny the application or petition when the required initial evidence is not submitted with the original filing and the applicant or petitioner fails to establish eligibility for the benefit sought. Examples include:

  • Waiver applications submitted with little or no supporting evidence.
  • Cases when the regulations, the statute, or form instructions require the submission of an official document or other form of evidence establishing eligibility at the time of filing and there is no such submission. For example, a Form I-864, Affidavit of Support, if required, was not submitted with a Form I-485, Application to Register Permanent Residence or Adjust Status.

This PM updates Chapters 10.5(a) and 10.5(b) of the USCIS Adjudicator’s Field Manual and contains an “Additional Considerations” section, which is not new, and is nearly identical to the policy in the superseded 2013 PM. For instance, USCIS must still offer the applicant or petitioner an opportunity for rebuttal before making a decision if it has derogatory information and the applicant or petitioner is unaware that the information is being considered.

Conclusion

By restoring full discretion to USCIS officers to deny petitions or applications, when appropriate, without issuing a Request for Evidence or Notice of Intent to Deny first, the new guidance reflects USCIS’ expanded enforcement priorities, which are also revealed in its updated policy on unlawful presence and Notices to Appear in removal proceedings.

For more information, read our related articles:

USCIS Policy Change Makes Nonimmigrant Students and Exchange Visitors More Likely to Accrue Unlawful Presence Toward 3/10-Year Bar and Permanent Bar

Updated Notice to Appear (NTA) Guidance Requires USCIS to Initiate Removal Proceedings In More Cases

###

This article provides general information only. It is based on law, regulations and policy that are subject to change. Do not consider it as legal advice for any individual case or situation. Each legal case is different and case examples do not constitute a prediction or guarantee of success or failure in any other case. The sharing or receipt of this information does not create an attorney-client relationship.

SUBSCRIBE           CONTACT

Photo by: tswedensky

Timely Filed H-1B Cap-Subject Petition + Complete Response to RFE = A True Success Story

On October 26, 2017, U.S. Citizenship & Immigration Services, California Service Center, approved an H-1B cap-subject petition that Dyan Williams Law PLLC filed for a non-profit organization on behalf of one of its preschool teachers. First, we had to file the petition in early April 2017 for it to be randomly selected in the H-1B lottery and reviewed on the merits. Next, we had to submit a timely Response to Request for Evidence (RFE) that fully addressed USCIS’ doubts on the position being a specialty occupation, which is a key H-1B requirement.

The H-1B petition, filed on April 3, 2017, was subject to the congressionally mandated, annual cap of 65,000 H-1B visas, which is commonly known as the “regular cap”. By April 7, USCIS announced it received enough H-1B petitions to reach the cap for its computer-generated random selection (lottery) process and, as of April 11, would reject and return all unselected petitions.

On April 14, USCIS issued a Form I-797C, Receipt Notice confirming the petition was selected in the lottery and was pending for review. Being chosen in the lottery was a win, by itself, because the petitioner’s prior cap-subject petition for the same beneficiary was not selected in the previous fiscal year. Fortunately, the beneficiary qualified for F-1 extension of post completion Optional Practical Training (OPT) and H-1B cap-gap benefits, which permitted her to work between the end of her F-1 status and the start of her H-1B status.

In July, after three months of waiting for further updates, we received USCIS’ Form I-797E, Request for Evidence, instructing the petitioner to submit a response by October 2. USCIS added that failure to submit all evidence requested at one time may result in the denial of the petition.

In particular, USCIS questioned whether the preschool teacher position is a “specialty occupation” that requires the theoretical and practical application of a body of highly specialized knowledge and a bachelor’s degree or higher in the specific specialty, or its equivalent.

The Service relied on the U.S. Department of Labor’s Occupational Outlook Handbook (OOH), which indicates a preschool teacher is an occupation that does not require a bachelor’s degree in a specific speciality as a normal, minimum for entry into the position. USCIS explained, “There is no standard for how one prepares for a career as a Preschool Teacher and no requirement for a degree in a specific specialty.”  It concluded the proffered position cannot be considered to have met this criterion.

Because normal industry standards indicates a bachelor’s or higher degree or its equivalent is not typically required for entry into a preschool teacher position, we had to show how at least one of the remaining three criteria is met:

1. the degree requirement is common to the industry in parallel positions among similar organizations or, in the alternative, an employer may show that its particular position is so complex or unique that it can be performed only by an individual with a degree

2. the employer normally requires a degree or its equivalent for the position

3. the nature of the specific duties are so specialized and complex that knowledge required to perform the duties is usually associated with the attainment of a bachelor’s or higher degree in a specific speciality

By narrowing down the petitioner’s industry to a certain category of organizations that require their preschool teachers to have at least a bachelor’s degree in early childhood education, elementary education, child psychology or related field, we established the position at issue is a specialty occupation.

To support the Response to RFE, I counseled the petitioner in gathering critical documentary evidence to meet the remaining three criteria. This included helping the petitioner prepare an affidavit (written testimony) and collect support letters from directors of similar organizations explaining why they normally require their preschool teachers to have at least a bachelor’s degree in a specific specialty.

We also presented various preschool teacher job postings at similar organizations requiring at least a bachelor’s degree in a specific specialty, as well as description pages from the organizations’ websites showing how similar they are to the petitioner’s organization.

In addition, we submitted documentary evidence demonstrating why the petitioner is held to a higher industry standard, for accreditation purposes, and its preschool teacher position is thus so specialized, complex or unique that it can be performed only by an individual with at least a bachelor’s degree in early childhood education, elementary education, child psychology or a related field.

To strengthen the Response to RFE, I prepared and submitted a legal memorandum discussing how the petitioner met its burden of proof and how the preschool teacher position at this non-profit entity meets at least one of the remaining three criteria to be classified as a specialty occupation for H-1B status.

Citing to the support letters and preschool teacher job postings from other employers, I explained the bachelor’s degree requirement is common to the industry in parallel positions among similar organizations. By describing the accreditation application and curriculum development processes used by the petitioner, I further described why it normally requires a bachelor’s degree or its equivalent for the position and why the job duties are so specialized and complex that only an individual with the degree can perform them.

I also recommended we obtain an expert opinion report confirming the preschool teacher position is unique and requires at least a bachelor’s degree in a related specialty, despite the OOH indicating no such degree is typically needed to enter the profession. By contacting a reputable evaluation service, I was able to procure such a report from a qualified professor of early childhood education.

After submitting a timely Response to RFE, we filed a Form I-907, Request for Premium Processing Service, which requires USCIS to issue a decision (approval or denial), RFE, or Notice of Intent to Deny within 15 calendar days, or refund the processing fee.

Within a week, USCIS approved the H-1B cap-subject petition and granted the beneficiary a change of status from F-1/OPT to H-1B. Getting the H-1B petition selected in the lottery, plus ultimately receiving an approval brought relief and joy to both the petitioner and beneficiary, who continue to have an employer-employee relationship.

To date, under the Trump Administration, there has been no congressional changes in law related to H-1B petitions or H-1B visas. But on April 18, 2017, President Trump signed the Buy American and Hire American Executive Order, which seeks to create higher wages and employment rates for U.S. workers and to protect their economic interests by rigorously enforcing and administering U.S. immigration laws. It also directs DHS, in coordination with other agencies, to advance policies to help ensure H-1B visas are awarded to the most-skilled or highest-paid beneficiaries.

Data provided by USCIS shows that between January and August 31, the agency issued 85,000 RFEs related to H-1B visa petitions – a 44% increase over the same period last year.  Meanwhile, the total number of H-1B petitions received by USCIS during this same period rose by less than 3 percent.

An RFE is issued after USCIS receives the petition and the reviewing officer concludes there is insufficient evidence or information to approve the case. The maximum response time for the petitioner is 84 days (12 weeks), although in some cases an additional 3 days is given to account for mailing time. An RFE delays the H-1B decision by several weeks or months and increases stress for both the petitioner and beneficiary seeking the H-1B status or visa.

It is becoming more common for USCIS to issue RFEs on the basis that the proffered position is not a specialty occupation. In The New York Times article, Is Anyone Good Enough for an H-1B visa?, an op-ed contributor wrote that he received two RFEs on this issue prior to receiving an H-1B denial. He notes:

My two requests for evidence asked me to prove my job was a “specialty occupation” – that is, work that only someone with a bachelor’s degree or higher can do. My work involves artificial intelligence and big data, and my letters of support came from an authority in my industry and veteran start-up investor, and a Nobel Peace Prize winner. But it wasn’t enough to convince the government that my job requires advanced skills. 

Not only does the job have to require a bachelor’s degree, the degree must also be in a related speciality. With tougher scrutiny and higher obstacles being placed on H-1B petitions, it is especially important for petitioners and beneficiaries to hire experienced immigration counsel to advise them in the application process, from start to finish.

Each fiscal year, H-1B petitioners strive to file cap-subject petitions in early April to be counted in the annual lottery. Whether you plan to file an H-1B petition or have received an RFE or denial on an H-1B petition already filed, contact Dyan Williams Law to obtain a consultation or inquire about representation.

In a consultation or through representation, we will apply our breadth of experience, unique skills and creative thinking to help you resolve your situation to the fullest extent possible.

Cheers,

Dyan Williams

Founder & Principal Attorney
Dyan Williams Law PLLC
(612) 225-9900
dw@dyanwilliamslaw.com

###

This article provides general information only. It is based on law, regulations and policy that are subject to change. Do not consider it as legal advice for any individual case or situation. Each legal case is different and case examples do not constitute a prediction or guarantee of success or failure in any other case. The sharing or receipt of this information does not create an attorney-client relationship.

SUBSCRIBE           CONTACT

Photo by: picturebridge