Increase in Requests for Evidence for All Types of Petitions

By: Toni Ordona

On October 23, 2017, the United States Citizenship and Immigration Services (USCIS) issued a Policy Memorandum, PM-602-0151 titled, “Rescission of Guidance Regarding Deference to Prior Determinations of Eligibility in the Adjudication of Petitions for Extension of Nonimmigrant Status”, which instructs USCIS officers to stop deferring to previous nonimmigrant petitions, when adjudicating the cases. This Policy Memorandum will supersede prior USCIS policies relating to an extension of nonimmigrant petition validity involving the same parties and the same terms of employment, that allow USCIS officers to defer to prior approvals , as long as there are no changes in the petition. The Policy Memorandum also states that USCIS adjudicators “should not feel constrained” in issuing Request for Evidences (RFE) or Notice of Intents to Deny (NOID).

What this means is that the USCIS will review each nonimmigrant visa petition filed for eligibility every time an Employer files a nonimmigrant petition for any foreign national, whether it’s for a new employee or it’s the 10th year extension.  Any employer filing Form I-129 petition must consider this new policy when planning for the future.

In the last several months and prior to October 23, 2017, Request for Evidences (RFE) have been at an all-time high.  USCIS has begun issuing RFE’s in unusual numbers which contain issues in relation to:

  1. Specialty Occupation,
  2. Relation of degree to the position,
  3. Right to Control,
  4. Level 1 wage used on the Labor Condition Application,
  5. Work Space Availability,
  6. Maintenance of Status such as F-1 status, and
  7. Bona-fide business.

Since the October 23, 2017 Policy Memorandum (PM), we can expect greater numbers of RFE’s.

In our experience, we have seen that employers amending the approved Blanket L to add a new subsidiary, are not required to provide evidence, not only to show the relationship with the new business entity, but also to show the relationship of all the other previously approved affiliates.

In light of the increased scrutiny, Mexico and Canada nationals with expiring TN visas, may want to consider renewing their TN visas in their home countries, instead of extending their status by filing a petition with the USCIS, so as to avoid RFEs and delays in processing.

Employers preparing and filing H-1B extension petitions in-house may now need the assistance of an experienced immigration attorney in filing petitions for extensions.  Employers are strongly advised to consult with Chugh, LLP on various documents to support your non-immigrant and immigrant petitions.

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