• the type of evidence needed
   

• the source and availability of documentation
   

• the effect a denial would have on the applicant / petitioner / beneficiary (such as the loss of on old priority date, the loss of status or interim benefits)
   

• the method of delivery of the RFE or NOID
   

• other case-specific factors

No Extensions of Response Time Permitted
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The regulation does not permit any extensions of time to respond to the RFE or NOID. This is not a change in the rules. Extensions of time for RFEs or NOID responses are not permitted currently. This has been problematic for NOIDs, as 30 days often prove to be insufficient; especially when the USCIS may take several weeks to mail the RFE or the NOID. The 30 days are counted from the date of the issuance of the NOID, when the date of receipt varies from a couple of days from that date to sometimes more than a couple of weeks later. In many cases, there have been complaints that the RFE or the NOID was never mailed out or received by the employer or the attorney at all.
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Denial Possible Without RFE / NOID
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If the initial evidence submitted does not reflect that the case is eligible for approval, the USCIS may deny the case, without first issuing an RFE or a NOID. It is all the more important, therefore, to submit complete cases, with evidence that is sufficient for an approval.
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USCIS Denial Likely if No Response Submitted
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If the USCIS does not receive a response by the RFE or NOID deadline, they have three options to deny a case. Under the regulation, they can deny by finding that the case has been abandoned. They can deny it based upon the evidence that they have received (which is presumably insufficient for an approval). They also can deny the case based on both of these reasons.
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Concerns with USCIS Regulation
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There are a number reasons to be seriously concerned about this regulation. People want their cases to move forward. Rarely does anyone have a motivation to delay responding to a case.
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Documents Often Not Easy to Obtain : If documents are easy to obtain, they typically will be submitted quickly. If the documentation is more complex or difficult to obtain for any number of reasons, then, for an RFE, the full 12-week timeframe is often needed. The ease or difficulty of obtaining documentation is not always obvious. Anyone who has had to prepare RFE responses knows that it can be challenging to coordinate the necessary documentation. It is not uncommon to have to acquire documents from multiple individuals - the employer, the foreign national, and/or from a number of family members. Some of these sources may be traveling abroad. Adjudicators have not necessarily had the real-world experience required to realistically determine the amount of time needed.
©MurthyDotCom
Time Lost in Mailing : Of particular concern is the amount of time that is lost in mailing by the USCIS, as alluded to above. The USCIS or its mailroom contractor does not send notices or other USCIS communications promptly. Postmarks are often several days AFTER the date on the enclosed NOID, RFE, or decision. It is quite typical to receive a NOID a week or more after the date on the NOID. Sometimes it is much longer. The deadline runs from the date on the actual NOID, however, not from the postmark or receipt date. If this all coincides with a holiday or vacation for any of the parties involved (lawyer, employer, or beneficiary), the time for response preparation can be significantly diminished.
©MurthyDotCom
More Appeals Likely : Changing RFEs so that they too can have a reduced deadline of as little as 30 days takes the problem and increases it greatly. NOIDs are far less common than RFEs. While the goal is efficiency, giving adjudicators discretion in this area just creates another place for errors to occur. When there is an error, there are potential grounds to appeal. When people are not given the ability to present their evidence, there are potential grounds to appeal and appeals clog the system further. This does not improve efficiency. Another matter of concern is that, generally speaking, an applicant / petitioner is not permitted to provide new evidence at the time of appeal. Thus, if insufficient time is given to respond to a NOID / RFE, and it is not possible to assemble and present all evidence by the short deadline, it may not be possible to provide that evidence at all, even on appeal.
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Issues of Fairness at Stake :  Given the length of time cases take to move through the immigration process, and what is at stake, it is not unreasonable to give applicants / petitioners the 12 weeks for RFE responses. What is saved by rushing the cases toward potential denial will be lost in time spent for appeals. Of course, there is also the general fairness issue that is lost in the shuffle. It should be noted that it is not unusual for one to seek a second legal opinion at the RFE stage, to determine whether one's lawyer did something "wrong" and/or to possibly hire a new lawyer. While an RFE does not necessarily mean that anything was done wrong, shortening the deadline reduces the opportunity to obtain second opinions and, potentially, locate a new attorney, if needed.
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Murthy Participation in Teleconference on RFE / NOID Regulation
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Because of our concerns surrounding this regulation, we at the Murthy Law Firm participated in a teleconference with the USCIS Ombudsman, Prakash I. Khatri. We voiced some of our concerns, particularly about mailing delays. Our report on that teleconference, and the responses to our concerns, are summarized in our article, Ombudsman's Teleconference on RFES / NOID Issues, #3 in this week's MurthyBulletin. We hope that the USCIS will continue to use the 12-week timeframe for the bulk of RFEs, and to limit the use of the flexible deadlines to a minimum of cases requiring the most easily attainable proof (such as better copies of  documents already submitted). It is rare for a NOID not to need 30 days for a response since, by the time it is received and the draft response prepared, the 30 days are almost over.
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2. H1B Lottery and Advanced-Degree Cap Update
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At the Murthy Law Firm, we are receiving many inquiries about the status of H1B cap-subject filings. Specifically, people are interested in the H1B cap lottery and want to know how they will learn what is going on with their cases filed for fiscal year (FY) 2008. The good or bad news for those subject to the H1B regular cap lottery is starting to arrive. We are continuing to receive receipt notices for our H1B cap subject cases that were selected in the lottery. The notifications for cases not selected in the lottery started to arrive on April 30, 2007. The USCIS has set May 11th as their deadline for issuing regular cap receipt notices. Since there is no online or other list of lottery "winners," we thought it would be helpful to let MurthyDotCom and MurthyBulletin readers know what is happening with the cases in our firm.
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Lottery Information Not on Internet - Check Your Mail or eMail
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A question often posed to us is whether one will know if her/his case was selected in the H1B lottery and whether there is a posting on the Internet that can be verified. There is no list available on the Internet. If a case was selected in the regular H1B cap lottery, the USCIS will issue a receipt notice dated after April 12, 2007. As mentioned above, they have set May 11th as their deadline for issuing receipt notices to the selected cases. The USCIS will also cash the filing fee checks. If a case was rejected, the entire filing will be returned to the employer or employer's representative. The filing fee checks will not be cashed. Thus, the answer is in the mail. (Premium processing cases receive eMail notification of the receipt notice, so their answer may come via eMail.)
©MurthyDotCom
H1B Regular Cap Cases
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As MurthyDotCom and MurthyBulletin readers were informed as soon as it was determined, the regular H1B cap was reached on the first day of filing, April 2, 2007. Thus, under the regulations, the USCIS conducted a lottery to determine which cases filed on the first two days of filing, April 2nd and 3rd, 2007, would be selected to receive one of the limited H1B cap numbers under the regular H1B quota for FY2008.
©MurthyDotCom
The USCIS held the H1B lottery on April 12, 2007. From that date forward, receipt notifications and approvals for premium processing cases began coming into our office. For those cases that did not use premium processing, the news is also starting to arrive. The receipt notices and notifications are coming in daily. With the May 11th deadline for issuing notices, everyone should know whether the news is good or bad in the near future.
©MurthyDotCom
H1B Advanced-Degree Cap Cases
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We filed many advanced-degree cap cases for delivery by April 2, 2007 under the FY2008 quota. For those that used premium processing, we started receiving receipt notification and approvals within days of filing. As of the end of April 2007, many of the receipts for cases that were filed without premium processing have been received. As of this writing, no final decisions on non-premium processing advanced-degree cases have been received.
©MurthyDotCom
As of this writing, we are awaiting the advanced-degree cap announcement. All cases filed before the cutoff date will have a cap number available to them. The most recent count available at this time is for April 30th. Therefore, all advanced-degree cases filed before that date have an H1B cap exemption number available.  
©MurthyDotCom
Conclusion
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This is a time of great uncertainty for many MurthyDotCom and MurthyBulletin readers; for those who filed under the regular H1B quota and those who filed under the U.S. advanced-degree quota. Many are in limbo while they await the lottery, which will determine if they smoothly transition to H1B status or if they will be denied H1B status, despite their having the required education and skill that is in great demand by U.S. employers.
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3. Ombudsman's Teleconference on RFEs/NOID Issues
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Mr. Prakash I. Khatri, the Ombudsman for the Department of Homeland Security (DHS) and the U.S. Citizenship and Immigration Services (USCIS), held an April 24, 2007 teleconference on issues surrounding Requests for Evidence (RFEs). Open to the public, the purpose of the teleconference was to collect information on current problems and concerns with the USCIS's practice surrounding RFEs. Especially in light of the important upcoming changes with respect to RFE deadlines for response, the Murthy Law Firm elected to participate in this teleconference. [For more information on the upcoming changes, see article #1 in this week's MurthyBulletin, USCIS Regulation on Response Time for RFEs and NOIDs.]
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Office of the DHS / USCIS Ombudsman
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The DHS / USCIS Ombudsman provides recommendations for resolving individual and employer problems with the USCIS. He also identifies recurrent problems in USCIS practice and the effects these have on customers, thereby making recommendations for improvement to the USCIS.
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RFE Complaints against USCIS
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RFEs are a source of many complaints and problems at the USCIS, second only to delays due to FBI name checks. Some of the most common problems with RFEs include requests for information already submitted, including requests for duplicate documents because they are missing some information. RFE requests in such cases do not provide an explanation of exactly what information is missing. For example, if the USCIS receives an application with Form W-2 attached to it, and this form does not contain an address, the USCIS will issue an RFE for another W-2 without specifying that it should include an address.
©MurthyDotCom
In addition to current issues, RFE procedures will undergo a significant change that is effective as of June 16, 2007. As reported to MurthyDotCom and MurthyBulletin readers in the article cited above, the USCIS will have flexibility in setting an appropriate length of time for petitioners and applicants to respond to RFEs and Notices of Intent to Deny (NOIDs).
©MurthyDotCom
Possible RFE Solutions Addressed during Teleconference
©MurthyDotCom
Specific recurrent problems and possible solutions discussed during the Ombudsman's teleconference included the following.
©MurthyDotCom
How does one obtain clarification on an RFE?

Problem : It is difficult for the petitioner or applicants to contact the USCIS Service Center which issued an RFE to obtain more information or clarification with regard to the RFE.

Solution : According to the Ombudsman, the national customer service line will be modified and improved to provide better access to case information.

Will the USCIS issue online RFEs for online filings?

Problem : Some petitions and applications can be filed online with the USCIS, but the RFE still comes via regular mail.

Solution : The Ombudsman indicated that he would recommend to the USCIS that all RFEs issued for online cases, should be sent via eMail or fax.

How can we avoid RFEs for duplicate documents?

Problem : RFEs are often issued for duplicate documents.

Solution : It is advisable to provide a complete list of documents submitted with a petition or application so that the USCIS has a record of a complete case. This may reduce the number of RFEs issued for duplicate documents.

Can USCIS simplify some cases by calling instead of issuing RFEs?

Problem : RFEs take a long time, while some of them request information that could be easily faxed or eMailed. To facilitate expedited processing of cases, the Texas Service Center (TSC) has adopted a helpful initiative reported by some of the immigration attorneys who participated at the teleconference. More specifically, adjudicating officers at the TSC determine if missing information can be requested without issuing an RFE. If it can be, then they simply call attorneys and/or applicants to request the simple document or check be sent to the TSC by fax or mail.

Solution : The Ombudsman indicated that he would recommend to the USCIS that other service centers follow this procedure.

Questions Posed to Ombudsman by Murthy Law Firm at Teleconference
©MurthyDotCom
While we are genuinely concerned about current problems with RFE issuance and the adjudication of cases that have been issued RFEs, we are also concerned about the new flexible timelines that the USCIS will start implementing on June 16, 2007. Therefore, we asked the following two questions.
 ©MurthyDotCom
Q : Will the USCIS take into account what seems to be mailroom problems (mail taking weeks to be sent and not reaching clients on time or at all) when changing to the new flexible time rule? If a petitioner or applicant has a limited time to respond to the RFE and s/he does not receive the RFE until a few days (or even weeks) after it was issued, then it may be impossible to respond to the RFE within the required timeframe.
©MurthyDotCom
A : The Ombudsman promised that he would look into mail-related problems to streamline this process.
©MurthyDotCom
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Q : How will the USCIS assess proper timeframes for any particular RFE? Some documents are easy to collect (like photographs) and will not require a long time, but some may be more difficult to produce (like documents from another country). Where will they draw the line in determining a timeframe to assign to a particular case?
©MurthyDotCom
A : The USCIS is currently working on a unified system to address these potential problems.
©MurthyDotCom
Conclusion
©MurthyDotCom
While concerns over RFE issuance are abundant, the Ombudsman's teleconference on RFE problems is an important step toward streamlining the overall process. With the involvement of others, as well, we at the Murthy Law Firm intend to play a part in making it easier to comply with USCIS policies and procedures, in an attempt to arrive at smoother and more equitable case processing.
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4. Options for Athletes : O & P Status (Part 2 of 2)
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In Part 1 of this article, available on MurthyDotCom, the O-1 option for international athletes was explained. In Part 2, we address the P-1 option, which is often viable for those athletes or athletic teams that do not meet the O-1, extraordinary ability, standards or who may otherwise benefit by the P-1.
©MurthyDotCom
P Status for Athletes
©MurthyDotCom
Athletes who cannot qualify under the extraordinary ability standard for the O-1 category may be eligible for a P-1 status or visa. Unlike an O-1, an individual athlete, his or her support team, or even an entire athletic team may qualify for this category. This category was expanded in 2006.
©MurthyDotCom
2006 Changes to the P Category
©MurthyDotCom
Prior to the changes in 2006, the P category was only available for those athletes who had achieved international recognition in the sport, either individually or as part of an internationally recognized team. The 2006 law expanded the P-1 visa category to include several new types of athletes and entertainers, based in part upon their memberships in certain groups or associations. These include: individual athletes on an athletic team that is a member of an association of six or more professional sports teams with combined revenues exceeding $10,000,000 per year; individual coaches and athletes performing with teams in the U.S. that are part of an international league or association of fifteen or more amateur sports teams in certain cases; and amateur or professionals ice skaters who perform in theatrical ice skating productions.
©MurthyDotCom
Most significantly, these new requirements established a much lower standard than was previously required of P-1 athletes. This has permitted athletes and coaches from minor league teams to use the P-1 category, rather than the H2B category for temporary workers. The H2B was problematic in recent years because it is subject to a quota and, therefore, was often unavailable. Athletes from countries deemed state sponsors of terrorism are excluded from eligibility, unless they obtain special clearance from the Department of Homeland Security and the U.S. State Department. Also, multiple athletes and performers are now allowed to apply using a single form instead of separate petitions.
©MurthyDotCom
No Numerical Quota for P-1 Visas
©MurthyDotCom
As with the O-1 visa, there is no numerical quota for the P-1. The initial approval of P status is limited to five years. An extension of another five years is possible, for a maximum period of ten years, for an individual athlete. Athletic teams can be granted an unlimited number of one-year extensions.
©MurthyDotCom
P-1 Filing Procedures
©MurthyDotCom
Classification in the P-1 category requires the filing of a petition. Only a U.S. employer or agent may file the petition. The athlete cannot self petition. It is possible to include multiple P-1 beneficiaries in the same petition.
©MurthyDotCom
Conclusion
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A person who may qualify for the P category must discuss this and other potential options with a knowledgeable immigration attorney. We at the Murthy Law Firm would be happy to discuss the options with you during a consultation, if you do not have an attorney. We trust that this overview has helped to provide some guidelines for those who may qualify.
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5. MurthyBlog : Professional Ponderings & Personal Musings of Attorney Murthy
©MurthyDotCom
While MurthyDotCom and the MurthyBulletin provide a platform to present readers with some important facts about U.S. immigration and a few of my professional opinions on that topic, I am excited to start a personal blog, which can be found at (http://www.murthyblog.com).
©MurthyDotCom
Because my chosen career is an important part of my life, this blog will carry information about my work as a U.S. immigration attorney, but more from the inside - my thoughts on the issues that matter to me and to my clients. It will be a place for me to reflect upon my many interests and projects and the important place in my heart held by my adopted homeland, the United States, and my native India. Still new at this stage, I plan to add entries on a regular basis for those of you who have expressed an interest in knowing what I am involved in. Following is the most recent blog entry.
©MurthyDotCom
United Way's Expansion Plans in India : May 2, 2007
©MurthyDotCom
On Friday, April 27, 2007, I participated in the United Way Leaders Programs in Atlanta, GA, where we had preliminary discussions for the expansion of the United Way network in India. The thought of making a real difference in the lives of many people from the country of my birth is very exciting!
©MurthyDotCom
We had a series of discussions among the leaders and shared ideas on the work and projects that can be undertaken. The most wonderful thing about this partnership between the United Way and India will be that it will allow each of us living in the U.S. to allocate funds directly towards projects of our choice in India!
©MurthyDotCom
Later that same evening the United Way honored the Gates family at the High Museum for their philanthropic work and support towards the United Way in the Seattle area. I had the privilege of meeting Bill Gates's father (Bill Gates Sr.) and his two sisters who are also active in various charitable endeavors. I spoke at length with them about my excitement in helping to expand the United Way network in India.
©MurthyDotCom
Margaret Mead aptly said: "Never doubt that a small group of thoughtful people could change the world. Indeed, it is the only thing that ever has." May each of us be a part of that group that will change our world for the better!
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6. MurthyDotCom : Did You Know about MurthyTakesAction?
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Aside from our excellent legal services and the online resources we provide, Sheela Murthy and our other attorneys at the Murthy Law Firm are also involved in the active pursuit of knowledge and the exchange of ideas. We regularly contribute to and attend meetings and conferences. We take part in initiatives to improve the condition for immigrants and to aid the U.S. companies that would like to employ them. Learn about some of our efforts and involvement by clicking Community in the left-hand margin of any page.
©MurthyDotCom
There will be NO CHAT session on May 07, 2007. The next session MurthyChat will be Monday, May 14, 2007, 9:00pm Eastern Time (U.S.). Please check the chat page for any necessary changes to the schedule. Meanwhile, search the chat transcripts for answers to your questions. 
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MurthyForum : Consider joining those who have discovered the value of this service. Our message / discussion board is visited daily by one of our attorneys.
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MurthyDotCom - MurthyBulletin - MurthyChat - and MurthyForum - Your ultimate U.S. immigration resources on the Internet all start with MURTHY!
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7. Important Processing Times and Dates
©MurthyDotCom
Processing Times : For links to processing times for the USCIS Service Centers, district (or local) processing times, the Administrative Appeals Office, Department of State visa bulletin, and Department of Labor dates for the processing of labor certification applications.
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