Increase in RFES – Fact or Fiction?

As part of our regular USCIS-related filings, we receive requests for evidence (”RFES”) on a number of occasions.  Such RFES are standard practice and often are unrelated to the substance of the petition - for example, requesting clear copies of the lastest Form I-94 card.  It is our practice to ensure that each petition filed with USCIS does indeed have all of the documents, in proper format, so that we minimize the amount of RFES we receive on petitions we file on behalf of our clients.

However, there is a fair amount of anecdotal evidence that USCIS has increased the number of RFES it issues on pending cases.  There is some speculation that such increase in RFES is due to the economic slowdown.  Although our office’s direct experience does not confirm such increase in RFES, USCIS has acknowledged that in some specific categories of cases, there is an increase in RFES.

Increase in RFES Related to TARP H-1B Worker Restrictions

USCIS has confirmed that it issued an increased amount of RFES in connection with the cap-subject H-1B filings and in particular with the TARP prohibitions on H-1B employers.   Our clients and readers may remember that shortly before the  April 1, 2009 filing date for FY2010 H-1B applications, Congress imposed H-1B worker restrictions on all recipients of TARP funds (please see our April 15th article on the subject).  As a result, the H-1B forms underwent a last-minute change after many such forms had been prepared (and sometimes, submitted).  As a result, USCIS had to issue RFES on all H-1B applications which used the previous form which did not request information about TARP funds and compliance with the new H-1B worker restrictions.

Increase in RFES Related to Consulting Companies

Additionally, USCIS has  acknowledged that there has been an increase in the RFES issued in H-1B applications concerning 3rd party employers (or consulting companies).  It has been reported that consulting company RFES are generally of the “kitchen sink” type where the USCIS adjudicator would issue a multiple-page RFE and which makes it extremely burdensome for the employer to respond to.  USCIS is expected to release updated guidance on the subject and provide additional clarify as to what are the evidentiary standards in the 3rd party employer cases.  Hopefully such guidance would come soon.

Conclusion

While the increase in the RFES is a fact acknowledged by USCIS, it is important to underscore that the increase is not due to the economic slowdown, a political change in Washington or just unstated government policy to issue denials or somehow protect American worked by denying applications of foreign workers.  We believe that the increase in RFES in the two categories of cases described above is related to a natural operation of USCIS’ guidelines and does not indicate any policy or attitude shift.