US Lawyers' Association Obtains Documents Explaining H-1B Rejections and RFEs

MUMBAI: The American Immigration Lawyers Association (AILA) has released documents produced by the US Department of Citizenship and Immigration (USCIS) in response to two requests from the Freedom of Information Act (FOIA).

The USCIS documents, previously hidden from the public, explain the reasons for the increase in H-1B rejections and evidence requests (RFEs).

The requirement to create a detailed itinerary for the H-1B staff who would be relocated to customer sites often resulted in RFEs. It also triggered Tier 1 salaries. In addition, USCIS focused on whether or not the job was a specialized occupation and examined H-1B applications, including visa extensions.

TOI's analysis shows that 48% of H-1B applications (both initial and renewal) discontinued during the first six months of fiscal year 2019 were searched for RFEs. This is an increase of 1% compared to the corresponding period last year. Nearly 95,050 RFE-related applications were reviewed by USCIS in the first half of fiscal year 2019, compared to 88,630 in the six months ended March 31, 2018. An important consideration that reflects the growing challenges associated with issuing H-1B visas, in particular IT service companies placing their H-1B employees at third-party sites (customers) will trigger the rejection of applications after the additional information has been submitted to USCIS under an RFE.

The approval rate for H-1B applications dropped to 60.5% after receiving additional information from sponsoring employers in the first six months of 2019. Of the 95,050 applications subject to the RFE procedure, only 57,500 were approved. The RFE approval rate was 62.3% higher in the corresponding period of the previous fiscal year.

As TOI reported in its June 18, 2018 issue, AILA filed a lawsuit to force the release of records of USCIS decision on H-1B petitions. This voluntary body has more than 15,000 immigration lawyers and academics as members. The members reported an increasing number of evidence requests (RFEs), followed by an increasing rejection of applications. Concerned that these trends indicated a shift in USCIS jurisdiction standards, AILA filed two separate petitions to obtain documents (notably on wages and professional qualifications) that would explain these measures. USCIS did not respond, which resulted in AILA filing a lawsuit with the court.

In the FOIA complaint, the USCIS was asked, in particular, for records of how the pay level reported in the working condition application (Level 1, Level 2, Level 3 or Level 4) affects the decision on H-1B classification and how the USCIS this determines whether a position is a specialty.

Diane Rish, Associate Director of Government Relations at AILA, said after documentary publication by USCIS: This FOIA production not only provides important insight into changes in H-1B's case law to AILA members, stakeholders and the public, It also highlights the immense need for transparency and accountability of the USCIS. As evidenced by this lawsuit, the government often has to be brought to justice to hold USCIS accountable.

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