Requests for evidence: Should employers expect a curveball this cap season?

Just as barbecue and baseball are sure signs of summer, in the immigration world, decisions on H-1B cap cases are hallmarks of the summer months. While most companies will receive either an approval or rejection, a great many employers will also receive another type of notice: a request for evidence, or RFE. RFEs have surged since 2017 when the Trump administration directed government agencies to increase scrutiny of visa categories, particularly H-1Bs, as part of its long game to transform high-skilled immigration by shifting how policies are administered.

Pre-Trump, about one in five H-1B petitions received an RFE, but in fiscal year 2018 the odds of receiving an RFE increased to 38%, and in the six months ending March 2019, nearly half (48%) of H-1B petitions were hit with RFEs.1 In addition to issuing more RFEs, USCIS has introduced new RFE types, often focusing on certain job roles or eligibility criteria. For example, in 2017, RFEs focused heavily on computer programmers, and in 2018, all entry-level positions were under particular scrutiny. Common RFE grounds include proving the employer-employee relationship, establishing the employee’s qualifications for the job, and showing that the H-1B worker has properly maintained his or her immigration status.

What kind of RFEs are in the government’s lineup for 2019? USCIS provided some important insights in a stakeholders call in March. USCIS officers discussed their approach to RFEs, the type of information they are looking for, and examples of common pitfalls when responding to RFEs. Notably, during their discussion of H-1B eligibility, they did not mention “business” among eligible H-1B occupations. This omission suggested that H-1B candidates in business roles are likely to face enhanced scrutiny this season, and, indeed, the latest RFEs suggest that business-related degrees may be in the government’s strike zone. Such roles might include marketing professionals, analysts, and product managers—jobs that straddle technology and business but are not strictly related to STEM fields.

As in recent seasons, the government is requiring much greater detail about the H-1B candidate’s job duties, wages, qualifications, and how the role fits within the company’s business. Companies should plan for longer timelines to respond to RFEs, and managers and employees should be prepared to play a hands-on role in providing information to their legal teams. For example, counsel may need to ask an expert in the industry, such as a university professor, to write an opinion letter stating the educational qualifications required for the H-1B job and whether it qualifies as a specialty occupation. In cases where the acceptable degree for a job includes a general term, such as “engineering” or “business administration,” managers should be prepared to explain whether any degree under that general description would suffice, or whether only degrees with certain specializations (such as computer engineering, software engineering, and electronics engineering) would be acceptable.

At a time when RFEs play such a critical role in the adjudication process, BAL is continuing to innovate strategies to respond to them. In addition to working closely with managers and employees, we also leverage our own analytic tools to track trends in RFE types, responses and outcomes. Companies should be ready to respond and adjust to the new reality in which RFEs increasingly represent the keys to the game, as cap season enters the home stretch. Good preparation will make the H-1B process a little less stressful and the barbecue and baseball a bit more enjoyable.

Brittany L. Delbridge is a Staff Attorney in the San Francisco and Walnut Creek offices of Berry Appleman & Leiden LLP.

1“H-1B RFE Completions Data, FY2015-FY2019 Q2,” U.S. Citizenship and Immigration Services, April 8, 2019, https://www.uscis.gov/sites/default/files/USCIS/Resources/Reports%20and%20Studies/Immigration%20Forms%20Data/BAHA/H-1B_RFE_Completions_Data_-_FY2015-FY2019Q2.pdf

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