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Newsletter - October 2009
RFE Trends
On a mission to eradicate fraud, USCIS is increasingly responding to petitions, including H-1Bs, L-1s, I-140, I-485
and others, with burdensome Requests for Evidence (RFE). Further exacerbating this problem is the fact that it has
become the norm for USCIS to allow only 30 days for a response. Below is a brief discussion on the requests typical
for the most common type of cases.
H-1B: Specialty Occupation
Although additional scrutiny has affected companies of all types and sizes, those that design and/or produce products
are not nearly as hard hit as companies that provide IT services. The California Service Center (CSC) frequently
requests IT services companies’ tax returns, quarterly wage reports, W-2s, client contracts, statement of works and/or
client letters specifying the H-1B employee by name, lease agreements with floor plan, business license and photos of
the office.
In lieu of client agreement and SOWs, the Vermont Service Center (VSC) takes a more reasonable approach in accepting
client letters that specify the H-1B employee by name, verify the duration and nature of the project, the location where
the work will be performed and the specific duties the H-1B employee will be responsible for.
What does USCIS do with the stacks of documents submitted in response to RFEs? They try to use it to justify denials.
For example, it may argue the leased premises is not large enough to accommodate the number of employees the company
has or challenge the employer’s credibility regarding where the beneficiary will really work based on the number of
employees in other states as shown by quarterly wage reports.
L-1: Specialized Knowledge or Management/Executive Transferees
from Abroad
L-1 RFEs frequently require organizational charts of both the US and overseas entity, marketing materials such as product
brochures, payroll records proving the candidate has worked for the overseas entity for the required one year, photocopy
of phone directory listing of the foreign entity, interior/exterior photos of all offices and information regarding the
criticalness of the L-1 candidate and how the US entity functioned up to this date without the L-1 candidate.
Increasingly, RFEs are followed by a denial of the L-1 petition. While denials for IT consultants may be reasonable
(for lack for “specialized knowledge”), there are even denials for engineers who work on the company’s proprietary
technology and products. Rationales for such L-1B denials claim there is insufficient proof the specialized knowledge
cannot be taught or there is insufficient proof the employee is of “crucial importance” or is a "key personnel."
L-1A petitions (for managers/executives) are affected by the same cloud of suspicion over the entire L-1 category, but
to a lesser extent.
I-140 Immigrant Petitions
Scrutinizing an employer’s ability to pay the offered salary remains the number one issue. Today, however, USCIS
is increasingly requesting proof of ability to pay all I-140 beneficiaries, instead of just the beneficiary at issue.
So, employers are increasingly requested to list all I-140 beneficiaries over a one to two year period and provide
evidence it can pay all I-140 beneficiaries.
I-485 Application for Adjustment of Status:
The number of interviews for employment based I-485 applications has increased significantly. Applicants with previous
arrests or convictions are likely to be interviewed.
USCIS is also scrutinizing derivative I-485 applicants (i.e., spouse of the principal I-485 applicant) on the legitimacy
of their marriage. These RFEs seek birth certificates of common children, proof of joint residence, proof of joint
ownership of property, joint tax returns, joint bank statements, evidence of spousal insurance coverage, etc.
Other notable observations:
USCIS is increasingly tallying and tracking cases filed by each company. Companies that file a disproportionately high
number of petitions relative to its overall headcount often face more burdensome RFEs.
USCIS is also considering information outside of the petition, some of which may not even be available to the employer.
Immigration Law Group LLP will continue to adapt to changes in adjudication standards and where appropriate, request
clients to provide more documents for the initial filing to preempt possible RFEs.
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