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Sep 21, 2017

USCIS Significantly Increases H-1B RFE Issuance in 2017

Jonathan A. Grode

USCIS Requests for Evidence (RFEs) for H-1B petitions have increased by more than 45% this year compared to the same timeframe in 2016, Reuters reports. Between January 31, 2017 and August 31, 2017, the agency issued approximately 85,000 such requests, compared to 59,000 over a similar period in 2016. USCIS RFEs may cover a wide range of topics, and may range from simple document requests (such as a request that a document be translated) to extensive challenges which require employers to prove (or re-prove) significant portions of the case.  

In particular, many immigration practitioners are reporting an increase in RFEs which are targeted at entry-level positions, including RFEs which challenge whether or not the duties of the position are sufficiently complex for the role to qualify as an H-1B occupation, or which challenge the use of lower prevailing wage levels in support of the filing. Although the increase in RFEs for H-1B petitions is not tied to any change in law or regulation, the apparent change in agency approach for these filings is consistent with the objectives set forth within President Trump’s "Buy American and Hire American" executive order.

Importantly, it is yet to be seen what impact, if any, this uptick in RFE issuance will have on the corresponding denial rates for H-1B petitions, as complete data in this area has not yet been released for this year, and many petitions which were filed under the Fiscal Year 2018 H-1B Cap remain pending.

For additional guidance regarding the H-1B classification and the current adjudicative climate, please do not hesitate to contact us directly. 

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