• USCIS Acknowledges Increased RFE and Denial Rate Trends While Refusing to Issue Figures
  • July 9, 2009 | Authors: Gregory P. Adams; Douglas Halpert
  • Law Firm: Dinsmore & Shohl LLP - Cincinnati Office
  • It comes as no surprise that U.S. Citizenship and Immigration Services (USCIS) has acknowledged the recent rise in Requests for Evidence (RFE) and denial rates of employment based petitions. Recent trends include the following:

    • higher rates of H-1B RFEs where the employee will work as a contractor or at an off-site location;
    • L-1B RFEs where the employee is younger, has relatively less experience and education and where he or she has held one job at the employer's foreign affiliate. This is particularly true in professions where the job title may be such that the position seems common, such as software engineer or market analyst; and
    • cases in the O-1 and EB-1 extraordinary ability and EB-1 outstanding researcher categories.

    Many of the RFEs are vexing because they contain boilerplate language that does not provide the employer with a clue about what USCIS is not convinced enough about to approve the petition. While there is a limit on the advance action that an employer can take to avoid such RFEs or denials (no one has a crystal ball on how a particular USCIS officer will react to a particular case), the best approach is to try to identify supporting documentation, particularly documentation that comes from a source outside the employer, to substantiate the key arguments being made. Unfortunately, these days even well-documented cases are more often the subject of RFEs.