Since President Trump issued his “Buy American and Hire American” Executive Order in April 2017, USCIS has been issuing Requests for Evidence (RFEs) at unprecedented rates. While the H-1B visa category was specifically targeted as one requiring stricter scrutiny and reform efforts, USCIS has also focused on other visa types for significant adjudication and approval changes. However, the underlying visa criteria and relevant immigration regulations have remained the same, signifying no controlling or concrete legal basis for the increase in RFEs and even denials.

The H-1B RFE trend appears to be the most pervasive given the following:

• For fully adjudicated cases, RFEs were issued for 69 percent of H-1B petitions in Q4 FY 2017 (which began on July 1, 2017) versus for 23 percent of the petitions in Q3

• 28,711 RFEs were issued in Q3 for 169,785 H-1B petitions USCIS received and 63,184 RFEs were issued in Q4 for 71,911 H-1B petitions received

The American Immigration Lawyers Association (AILA) reports that members are experiencing the same increased RFE rates for H-1B petitions in FY 2018, although official statistics have not yet been released.

The L-1 Trend

While the RFE rate for L-1 petitions has remained the same, there has been an increase in denials:

• Q4 FY 2017 L-1B petitions for Specialized Knowledge workers were denied at a rate of 28.7 percent versus Q1 FY 2017 at 21.7 percent. The increase in denials continued into FY 2018 with a denial rate of 30.5 percent in Q1 and 29.2 percent in Q2.

• Q4 FY 2017 L-1A petitions for Managers and Executives were denied at a rate of 21.4 percent, up from 12.8 percent in Q1.

Another possible contributing factor to consider is that USCIS’s Policy Memorandum, issued Oct. 23, 2017, directs adjudicators to review extension petitions with the same scrutiny as an initial petition. It replaced USCIS’s previous policy of giving deference to prior determinations of eligibility when there were not material changes in employment. It is now common for USCIS to issue RFEs for L-1 and H-1B extensions based on initial petitions that were approved without further question.  This may present problems for employers and employees in the context of L-1 extensions for employees who have been in the United States for a number of years as the RFEs request a significant amount of information about previous qualifying employment abroad, and such an employee may not have access to or the ability to compile the detailed historical data needed. In addition, it is common for entities to be restructured and former team members and supervisors to change positions, which could in some cases make it harder to find the required information.

While RFEs are seemingly being issued blindly, there are several things employers and employees should keep in mind:

• Preparing detailed job duties/descriptions specific to the individual’s position that do not contain any vague or ambiguous terms may evidence upfront that the employment qualifies for the classification sought. Adjudicators seek to understand exactly what the employee will be doing on a daily basis and what tasks the job duties entail.

• Providing documentary evidence of the employee performing managerial, specialized knowledge, or specialty occupation job duties (e.g., screenshots, emails, reports, presentations, and pictures of the employee carrying out a complex process) may show that the relevant criteria are being met. Including such detail and even a few pieces of supporting documentation upfront may reduce the chance of a RFE, which is certain to require a substantial amount more of both.