Is USCIS using requests for evidence to hold up visas

RFE numbers shot up 153% between 2016 and 2017 after April memo

Ritu Jha

Ramesh (name changed), a software engineer in Silicon Valley, who has been in the US since 2007 works at a big internet provider, Besides a B.Tech degree from India, and armed with an MBA, he decided he what it took to apply for a green card.

But last December, the US Citizen and Immigration Services served him with Requests for Evidence (RFEs) on his application, asking him why he worked as a software engineer if he was an MBA.

“We thought life will be better if he has an American degree,” Ramesh’s wife said. It’s good to have both degrees, right, she asked. “Now every day I worry what can happen next.”

Ramesh is just one of the many people who has been targets of RFEs, the number of which shot up after a new memo was adopted by the USCIS last April.

Coming out March 31, 2017, the USCIS released a Policy Memorandum, with modifications targeting “computer programmers” applying for an H-1B visa.

The memorandum states that the December 22, 2000 “Guidance memo on H1B computer-related positions” does not fully or properly articulate the criteria that apply to H-1B specialty occupation adjudications and is now somewhat obsolete. It points out that most programmers had a bachelor’s degree or higher that is “not particularly relevant to a specialty occupation adjudication if it does not also provide specific specialties the degrees were in and/or what, if any, relevance those degrees had to the computer programmer occupation.”

In simple words, a two-year associate’s degree in computer applications is not sufficient qualification, and that the degree earned has to be in computer science and information technology.

The result, of course, has been more computer programmers in the H1-B category being quizzed about their applications.

A report indica received from USCIS shows that during fiscal years 2015 to 2018, USCIS has sent out a total 300,762 RFE’s for 1,213, 488 applications received.

Of these, the number of RFEs served between FY 2015 and FY 2016 rose from 78,469 to 80,961, a non-significant difference, but leaped to 124, 237 in FY 2017. The last was a rise of 153 percent from the FY 2016.
In a statement to indica, USCIS conceded the change.

In an emailed statement to indica, USCIS Director L. Francis Cissna said, “It is true that we’ve issued more RFEs recently. This increase reflects our commitment to protecting the integrity of the immigration system.”

“On occasion, it is necessary to issue more than one RFE per petition to ensure the petitioners are being truthful and that the jobs and wages being provided are accurate. We understand that RFEs can cause delays, but the added review and additional information gives us the assurance we are approving petitions correctly. Increasing our confidence in who receives benefits is a hallmark of this administration and one of my personal priorities,” Cissna said.

Kirti Kalra, an attorney at the Silicon Valley-based Chugh Law told indica there were a few issues impacting the sudden increase in RFEs issued.

Leveling issues: USCIS suddenly now believes H-1B is only limited to Level II and up – meaning people with a high level of experience along with a bachelor’s degree when the minimum requirement has always been just a bachelor’s degree.Availability of work: USCIS now requires extensive documentation from the end-client regarding the availability of work. In a profession where agreements are made on a short-term basis, those trying to get people on contracts for three to six months run into a USCIS, which wants to see a three-year contract.

Qualifications: USCIS often points out that beneficiaries are not being qualified for the specialty occupation position, even if they have their degrees and evaluations included in the application.

“Even when almost perfect documentation is provided denials are issued on a regular basis,” Kalra said.

Attorney Shah Peerally told indica, “ To get H1B visa, you have to prove that the job is a specialty occupation.”

“A specialty occupation is briefly defined as one which requires a bachelor’s degree. So USCIS is kind of picking and choosing,” he said.

Peerally said that applications for jobs paying below $100,000 that are not clearly defined as specialty occupations are being refused H1-B visas. Even those who made it through the H1B lottery master cap are being reassessed to ensure they do fall into a master’s cap – even with master’s degree was earned in the US.

Kalra said, “There has been no decision reached yet. If they do put a hold on extensions, this will not be good and not something we will be happy about. However, [such a step is] is very unlikely as the White House is already backtracking on the information.”

Asked if the RFEs are another way to reject people waiting for green cards for years, Kalra said that while that could be the case, the primary goal appeared to be to change the way H-1B is used in this country. A hold on green cards could – and most likely will – be a secondary effect of the RFE’s.

Tejas Shah, co-chair of the South Asian Bar Association (SABA) of North America’s immigration committee and a partner at Franczek Radelet PC, told indica, “What they are trying to do is limit the legal immigration generally. That’s alarming to all of us… We know that this administration has identified immigration of all forms in their view as a problem. They’ve put many people in positions of leadership who have long opposed immigration and they are interpreting laws and regulations to curb … legal immigration.”

According to him, “There is a need for dialogue and advocacy but [the authorities] have a different agenda from the previous administration.”

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