1 Common RFE’s in Business Immigration LawKelli L. Hayes and Dwight D. Myfelt Hammond Law Group, LLC

2 We See More Requests for Evidence (RFE) Every DayH-1B Visa Requests for Evidence FY 2004 – 4% FY 2007 – 18% FY 2014 – 25% (1, 2) National Foundation for American Policy (2012) (3) USCIS Ombudsman Annual Report (2015)

3 Fundamentals of Requests for Evidence (RFE’s)How Long Do You Have to Respond? Counting Time Holidays and Weekends Can You Get an Extension? Technically and Practically

4 Fundamentals of Requests for Evidence (RFE’s)What is the Standard of Proof? “In most instances, the individual has the standard of proving eligibility by a preponderance of the evidence. Under that standard, the individual must prove it is more likely than not that each of the required elements has been met.” Policy Memorandum, Requests for Evidence and Notices of Intent to Deny, June 3, 2013

5 Fundamentals of Requests for Evidence (RFE’s)What is the Difference Between an RFE and a NOID? Request for Evidence (RFE) 84 Day Response Time Notice of Intent to Deny (NOID) 30 Day Response Time

6 Fundamentals of Requests for Evidence (RFE’s)Can USCIS Deny a Petition Without First Issuing an RFE or NOID? The regulations do not require adjudicators to issue RFE or NOIDs before denying an application (8 C.F.R (b)(8)) however, USCIS intends to exercise this authority only where cases “are filed with little more than a signature and proper fee, and therefore are substantially incomplete or where the applicant or petitioner has failed to demonstrate a basis for eligibility for the benefit sought.” 72 FR 19100, (April 17, 2007)

7 Fundamentals of Requests for Evidence (RFE’s)How Long Does USCIS Have to Adjudicate After You Submit a Response? Premium Processing The 15 day clock restarts upon receipt of your response. Regular Processing No fixed response time. Allow 60 days for processing after submission of response before submitting request for action on case.

8 Fundamentals of Requests for Evidence (RFE’s)When Does Your Client Have to Sign an RFE Response? Facts v. Law “Moreover, counsel’s assertions in response to the RFE cannot be concluded to outweigh the evidence presented . . .”

9 Fundamentals of Requests for Evidence (RFE’s)Agency Policy Regarding Multiple Responses 8 C.F.R (b)(11) “In response to an RFE or a NOID, individuals must submit all of the requested materials together at one time, along with the original RFE or NOID. If only some of the requested evidence is submitted, USCIS will treat such submissions as a request for a decision on the record.” What Do You Do if Your Client Sends in a Partial Response

10 Fundamentals of Requests for Evidence (RFE’s)Do You Have to Respond to Every Question USCIS Raises in an RFE? Can You Call Them Idiots?

11 Fundamentals of Requests for Evidence (RFE’s)The Culture of “No” Do Officers Use RFE Templates? Do Officers Share Information? Can You Identify Which Officer Wrote Your RFE? Know Your Service Center Habits and Culture (Officer Education) Do Employers Get Flagged or Black Listed?

12 Strategy and the RFE ProcessWhen is the First Time You Start Thinking About an RFE? The Day Before the Response is Due? The Day You Receive the RFE? The Day You Open the Case? The Day the Client Retains You? The First Time You Ever Meet the Client?

13 Strategy and the RFE ProcessThe Hard Sell and Setting Client Expectations Do You Talk About How You Don’t Get RFE’s? Do Your Sales Strategies Leave Your Clients Thinking Receiving an RFE is Nothing Short of a Nuclear Holocaust? What Happens When You Send a Client an RFE? Do You Identify Your Client’s Comfort Level With RFE’s?

14 Strategy and the RFE ProcessStrategizing With Your Client About Possible RFE Issues Before Filing Discuss Possible Issues With Your Client Discuss Whether to Advise The Employee About an RFE and Possible Issues Discuss Whether Going to Disclose to Employee After Receipt of RFE Tell Them to Take No Action if They Receive an RFE Tell Them to Let You Know They Received an RFE

15 Strategy and the RFE ProcessSome Questions to Ask Before You Start Working on Your Case Do You Want an RFE? Are You Going to Get an RFE No Matter What You Submit With the Petition? What are the Common RFE Issues for This Type of Case? What Service Center Will the Case Be Filed With? Is Your Client on Any Kind of ”Black List”?

16 Strategy and the RFE ProcessSome Questions to Ask Before You Start Working on Your Case Do You Want to Premium Process the Case? Are Your Issues Going to Be Technical or Factual? Can You File Without Everything You Need? If So, Can You Get What You Need in Time to Respond to an RFE?

17 Strategy and the RFE ProcessSome Questions to Ask Before You Start Working on Your Case Do You Want to Anticipate All the Issues in Your Initial Petition? File With the Kitchen Sink or Just the Drain Plug? What Are Your Client’s Time Deadlines? April 1 H-1B With October 1 Start Date vs. H-1B Transfer How Are You Going to Bill for an RFE? Withdrawal vs. Denial

18 Strategy and the RFE ProcessWhat Do You Do After You Receive the RFE Has USCIS Properly Stated the Law? Send to Client Right Away? Tell Client to Wait for Analysis?

19 Common RFE Issues Degree Issues Degree Equivalence Three year DegreesMultiple Degrees – The One Degree Rule Credential Evaluations The EDGE Database

20 Common RFE Issues Experience Issues Calculating ExperiencePart-Time and Volunteer Experience Progressive Experience (EB-2) Documenting Experience Prior Employer No Longer in Business Alternative Forms of Proof (Affidavits, Annual Reviews, Co-Workers)

21 Common RFE Issues Ability to Pay Issues Determining Ability to PayAytes Memo Tax Returns v. Audited Financials Employee Worked for Six Months FEIN Corporate Identity Ability to Pay for Non-Profits

22 Common RFE Issues Addressing Negative IncomeStart -Ups With Growth Potential Contracts/SOW’s/Purchase Orders/Future Business Throwing Mud at the Wall

23 Common RFE Issues Corporate Identity IssuesWhich FEIN Will Be Paying the Employee? Successor in Interest I-140’s v. H-1B’s New Petition Requirements Holding Companies and Payroll Companies

24 Case Specific RFE IssuesH-1B Visas Simeio Amendments Specialty Occupations Licensure Maintenance of Status (Students) Remote Work

25 Case Specific RFE IssuesH-1B Visas Degree Relating to Occupation VisaScreens for Health Care Professionals Right to Control (Employer/Employee Relationships) Cap Exempt (Never Subject to the Cap/Already Counted) Need for the Beneficiary Validation Instrument for Business Enterprises (VIBE)

26 Case Specific RFE IssuesEmployment Based Applications to Adjust Status Succesor-in-Interest Issues AC21 Porting Maintenance of Employment Authorization Expired Medical Exams