USCIS requests for evidence continue to climb

Requests for evidence (RFEs) – including “unduly burdensome” requests – continue to plague high-skilled worker petitions in the H-1B, L-1A and L-1B categories, according to the 2014 annual report of the U.S. Citizenship and Immigration Services (USCIS) Ombudsman.

In the first half of fiscal year 2014, the RFE rate hit nearly 50 percent for L-1B Specialized Occupation petitions and nearly 43 percent for L-1A Intracompany Transferee petitions.

RFEs have also increased for H-1B (Specialty Occupations) petitions at both the California Service Center (CSC) and Vermont Service Center (VSC) over the past two years. RFEs for L-1A and L-1B petitions have been on a general upward trend for the past several years and rose sharply in the past year at the VSC.

‘Unduly burdensome’ RFEs

The report pointed out the inefficiency of unnecessary RFEs and gave an example of an actual RFE issued in multiple cases by both the CSC and VSC that requested a list of all employees, their payroll summaries and all employee agreements.

“This RFE is unduly burdensome and demands confidential, proprietary information,” the Ombudsman’s report said, adding that after repeated discussions, USCIS reopened the cases and issued approvals.

The report noted that on June 3, USCIS issued a policy memo instructing adjudicators to issue RFEs only if “the officer determines that the totality of the evidence submitted does not meet the applicable standard of proof. Otherwise, the adjudicator should approve or deny the petition.”

L-1B denials

The Ombudsman also reported that L-1B denial rates have risen recently. The denial rate five years ago was 20 percent, but today 40 percent of cases are denied at the CSC and 32 percent are denied at the VSC. The report called for long-awaited guidance from the agency on the definition of “specialized knowledge.”

Copyright © 2016 Berry Appleman & Leiden LLP. All rights reserved. Reprinting or digital redistribution to the public is permitted only with the express written permission of Berry Appleman & Leiden LLP. For inquiries please contact copyright@bal.com.