H1B Extension denial without RFE starting 9/11 – USCIS changes policy

H1B Extension can be denied without RFE with USCIS policy change, if initial application is missing important documents, client letter to prove eligibility.

  By Am22tech    Updated  2 Mar, 20

Update Sep 12, 2018 – Checklist issued by USCIS

USCIS has published the informational checklist for filing employment based work visas.

USCIS Checklist for H1B Visa Transfer, Extension, Amendment

Petition for H-1B worker submitted without any evidence of the education or specialty occupation can be denied without RFE now.
Make sure you follow the checklist:

  1. Evidence the beneficiary maintained status if seeking a change of status or extension of stay
  2. Evidence showing the proposed employment qualifies as a specialty occupation
  3. Evidence showing the beneficiary is qualified to perform the specialty occupation
  4. A copy of any required license or other official permission for the beneficiary to perform the specialty occupation in the state of intended employment (if applicable)
  5. A copy of any written contract between the employer and the beneficiary or a summary of the terms of the oral agreement under which the beneficiary will be employed
  6. An itinerary showing the date and places of assignment if the petition indicates that the beneficiary will be providing services at more than one location.

Update Sep 6, 2018 – Denial without RFE teleconference result

On 6 Sep, 2 to 3 pm EDT, USCIS held a teleconference to discuss USCIS Policy on rejecting all visa applications
including H1B or any other, without issuing RFE or NOID.

Main points from the teleconference:

1. USCIS will create checklist for initial evidence

USCIS will release Optional Checklist on 09/11/2018 to help applicants find out what the “initial evidence” should be to avoid direct rejections.

2. Train USCIS officers

USCIS said that they have given extensive training to their immigration officers on how to apply this new policy.

3. Rejection without RFE – Only applicable to cases filed on or after Sep 11, 2018

The new policy applies only to the cases that are filed on or after 09/11/2018 and will not apply to any cases which were filed before this date.

4. No need to worry if your papers are correct

The new policy is intended to punish applicants who try to game the system filing incomplete applications intentionally.
The policy will NOT affect applications with unintended errors.

USCIS says that they have taken this drastic step to reduce overall processing time of applications that are usually delayed due to RFEs, which they found were issued in almost 40% of cases.

We hope that this USCIS policy would weed out the fraud and help reduce H1B processing time by almost half!

Update August 24, 2018

Business Roundtable has sent an official letter to USCIS, signed by Apple, ADP, American Airlines, Pepsi, Coca Cola among other CEOs to rethink their denial policies without issuing RFEs.

H1B extension can be denied without RFE now

USCIS posted a another policy change (on July 13, 2018) that gives more power to its consultants regarding their discretion to deny an application, petition, or request without first issuing a Request for Evidence (RFE) or Notice of Intent to Deny (NOID).

They can now deny the H1B extension straightaway if any of the required document is not submitted or the evidence of record fails to establish eligibility with application.

Before this rule change, USCIS rarely denied the H1B extension or transfer without first issuing RFEs or NOIDs even though they had limited powers to do it.

Last week of June, USCIS changed its policy to allow issuing NTA (Deportation Order) if H1B application is denied.

Imagine your H1B extension application getting denied after your i94 has already expired. You are eligible for NTA (Notice to Appear – Deportation order) as per the earlier policy change.
And now, with this policy change, you can’t even expect to be issued an RFE, which any H1B worker would have expected till today.

Related: DHS’s decision to withdraw the H4 EAD work authorization

This new rule will take effect from September 11, 2018 and applies to all applications, petitions, and requests including new H1B petition, extension, transfer and other types of visa.

Can missing H1B client letter cause denial without RFE?

Yes, it can.

A very real life example if non-inclusion of ‘Client Letter’ in H1B extension, Transfer and Amendment application.
A high number of RFE’s issued on H1B applications ask for submitting ‘SOW (Statement Of Work)‘ and ‘End Client Letters‘.

Now, if you do not submit these important documents with your application, USCIS can straightway deny the petition without ever issuing any RFE since, these documents were required to prove your application eligibility in first place.

Can H1B wage Level 1 cause rejection without RFE?

Yes, it can.

We have seen recently that USCIS was issuing RFE’s for H1B Computer science Wage level 1 applications that are normally paid by software consulting companies to its workers working at client site.

These applications are now under threat as they can be denied without issuing RFE’s.

Can lack of Specialty Occupation cause H1B denial without RFE?

Yes, it can.

USCIS has been issuing a lot of additional evidence requests to prove ‘Specialty Occupation‘ and why the job profile mentioned in the H1B application can’t be performed by a college graduate.

Before this change, a CSE bachelor degree holder working as .net developer would have received and RFE to prove the job’s expertise.
The H1B may be denied finally but now, your application is bound to be denied without ever issuing RFE.

Read USCIS’s official guidelines on H1B’s eligibility requirement.

USCIS claims not issuing RFE will reduce application processing times

USCIS claims that they have changed this policy to avoid spending time on frivolous or merit less applications including H1B (extensions and transfers), F1, Green Card and others, that are currently issued RFE and NOID.

By rejecting the applications without issuing RFE (Request for Evidence), USCIS will save important time that can be used to work on other legitimate visa applications.

Related: Current H1B processing times

Related: EB2 India Predictions – 20 years average wait time, 151 years worst case

H1B can be denied without RFE after USCIS policy change H1B can be denied without RFE after USCIS policy change

DACA applications cannot be denied without RFE or NOID!

The DACA applications are not affected by this new policy as courts in California and New York have given preliminary injunctions.
Seems like Trump administration is after legal immigration.

USCIS is trying to choke the life of skilled workers in USA by hook or crook.

Only time can tell if these measures are really going to help weed out the crap or just make every skilled worker’s time difficult.

Source: USCIS policy memorandum (PDF, 113 KB)

This article originally published at TruVisa.com. Shared here for wider audience reach.

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