05/05/2004: USCIS Move to Reduce RFEs
The AILA has reported that yesterday the USCIS started its move to reduce issuance of RFEs which had burdened the agency with tons of workloads leading to the delays in adjudication and backlogs. This move cuts both ways for the customers. But before we get to this point, let's find out the skeleton of the agency's new guidelines.
Outright Denial for Failure to Meet Basic Statutory/Regulatory "Substantive" Qualification Requirements: From today, the agency will deny petitions or applications if the filing fails to meet the "threshold" eligibility requirements for the petitions or applications. This will help the agency to throw out either frivolous or totally ineligible cases without wasting any time and money.
Outright Denial for Failure to Submit "Sufficient" Evidence to Establish Eligibility: When the petitioners or applicants submit the required basic threshold supporting documentation which meet the "initial" evidence requirement under the statute and regulation, the agency will not give additional opportunity to supplement the evidence by issuing RFE. Accordingly, it will be critically important that the petitioners or applicants go an extra mile to document not just de minimus threshold evidence but sufficient evidence to prove the threshold requirements.
RFE is required When "Initial" Records Are Missing: The statutes and regulations list the record requirements for filing of petitions or applications. If such records or evidence are missing, the agency will continue to issue RFE.
The positive impact of this move is obviously reduction of backlog. This web site has been advocating such move all along.
However, one should not ignore the negative side of this decision. People will see increased number of denials in the mail without RFEs. A couple of things people should be conscious in presenting a case from here on:
Meticulous Documentation for Threshold: One cannot sit on a minimal documentation anymore. The agency cited as an illustration issue of "employer's financial ability to pay the proffered salary" to the alien employees. If the least amount of evidence is submitted to establish this requirement, which the agency believes failed to prove this requirement, the case will be denied outright. From here on, "extra" documentation may be a prudent thing to do.
EAD vs. H-1B Strategy for I-485 Filers: The risk of working on EAD rather than H-1B status will increase substantially under the new policy. Once I-485 is denied, the alien loses the legal status immediately if the alien worked on EAD rather than a nonimmigrant status. The agency will immediately revoke the EAD. The only recourses available will be either an appeal or a motion to reconsider or a motion to reopen. Meanwhile, those who work on H-1B will not be affected by such denial when it comes to their H-1B employment and legal status. Besides, those who work on EAD rather than a nonimmigrant status are subject to removal proceedings as they do not have any specific nonimmigrant status when the I-485 application is denied. Another important point to remember for the 7th-year H-1B extension eligible professionals. Under the current court decision, the denial of agency does not deprive them of eligibility for the 7th-year extension "if" an appeal has been filed timely. The court determined that "final decision" under the AC 21 that stops the eligibility for the 7th extension eligibility would not arrive until a decision is made by an appeal unit. It is thus likely that people will witness an increased number of appeals to seek remedy for the legal issues and to preserve their right to the 7th-year H-1B extension pending appeal.
The AILA has reported that yesterday the USCIS started its move to reduce issuance of RFEs which had burdened the agency with tons of workloads leading to the delays in adjudication and backlogs. This move cuts both ways for the customers. But before we get to this point, let's find out the skeleton of the agency's new guidelines.
Outright Denial for Failure to Meet Basic Statutory/Regulatory "Substantive" Qualification Requirements: From today, the agency will deny petitions or applications if the filing fails to meet the "threshold" eligibility requirements for the petitions or applications. This will help the agency to throw out either frivolous or totally ineligible cases without wasting any time and money.
Outright Denial for Failure to Submit "Sufficient" Evidence to Establish Eligibility: When the petitioners or applicants submit the required basic threshold supporting documentation which meet the "initial" evidence requirement under the statute and regulation, the agency will not give additional opportunity to supplement the evidence by issuing RFE. Accordingly, it will be critically important that the petitioners or applicants go an extra mile to document not just de minimus threshold evidence but sufficient evidence to prove the threshold requirements.
RFE is required When "Initial" Records Are Missing: The statutes and regulations list the record requirements for filing of petitions or applications. If such records or evidence are missing, the agency will continue to issue RFE.
The positive impact of this move is obviously reduction of backlog. This web site has been advocating such move all along.
However, one should not ignore the negative side of this decision. People will see increased number of denials in the mail without RFEs. A couple of things people should be conscious in presenting a case from here on:
Meticulous Documentation for Threshold: One cannot sit on a minimal documentation anymore. The agency cited as an illustration issue of "employer's financial ability to pay the proffered salary" to the alien employees. If the least amount of evidence is submitted to establish this requirement, which the agency believes failed to prove this requirement, the case will be denied outright. From here on, "extra" documentation may be a prudent thing to do.
EAD vs. H-1B Strategy for I-485 Filers: The risk of working on EAD rather than H-1B status will increase substantially under the new policy. Once I-485 is denied, the alien loses the legal status immediately if the alien worked on EAD rather than a nonimmigrant status. The agency will immediately revoke the EAD. The only recourses available will be either an appeal or a motion to reconsider or a motion to reopen. Meanwhile, those who work on H-1B will not be affected by such denial when it comes to their H-1B employment and legal status. Besides, those who work on EAD rather than a nonimmigrant status are subject to removal proceedings as they do not have any specific nonimmigrant status when the I-485 application is denied. Another important point to remember for the 7th-year H-1B extension eligible professionals. Under the current court decision, the denial of agency does not deprive them of eligibility for the 7th-year extension "if" an appeal has been filed timely. The court determined that "final decision" under the AC 21 that stops the eligibility for the 7th extension eligibility would not arrive until a decision is made by an appeal unit. It is thus likely that people will witness an increased number of appeals to seek remedy for the legal issues and to preserve their right to the 7th-year H-1B extension pending appeal.
