NSC Commitments re Problem H1B RFEs
Posted Jan 19, 2001

Many employers and attorneys have noticed an increase in the number of INS requests for additional information (known as Requests for Evidence, or RFEs) that the Nebraska Service Center (NSC) sends out on H1B cases. Attorneys from the American Immigration Lawyers Association (AILA) NSC Liaison Committee have been discussing the matter with NSC officials for several months. AILA member attorneys provided examples of "problem" RFEs and denials for NSC officials to review and comment upon. AILA has pointed out that some of these RFEs and denials may be contrary to INS policies.

The problem RFEs submitted can be grouped mainly into the following categories:

(a) Certain computer and high tech positions that NSC concluded did not meet the criteria for H1B specialty occupation. [For details on the definition of specialty occupation, kindly refer to our first H1B overview article entitled Overview: H1B Visas for Temporary Professional Workers (Part I) in the January 5, 2001 MurthyBulletin.]

(b) Requests for large amounts of information, for example detailed job descriptions including percentage of time spent on each task; or restatements of the law by NSC, without focusing on the specific deficiencies of the particular case.

(c) Requests that disregard evidence already submitted. These include many RFEs that disregard credentials evaluations.

In a meeting with AILA at the NSC in November 2000, NSC announced that it now had a checklist for its officers, highlighting the issues to be aware of and items to look for in deciding H1B cases. Also, NSC agreed to stop using some standard language on RFEs that may be contrary to law or policy, and agreed to stop sending unspecific RFEs of the type described in item (b) above.

With respect to complaints about ignoring credentials evaluations, NSC officials indicated that they might not be inclined to accept credentials evaluations that include work experience as part of the calculation for a degree equivalency unless the evaluator is someone with the authority to grant college credit for experience.

NSC stated that in the majority of the cases with the problem RFEs that were brought to NSC's attention, the cases were ultimately approved. Still, problem RFEs caused significant burdens for all concerned -- for example, for employers, who had to gather the necessary information and documents, for attorneys who had to formulate responses to questions that were difficult to respond to and, of course, for foreign national employees, many of whom had to wait for several months without being able to work or switch employers under the law prior to ACTA or AC21. AILA continues to work with NSC on this issue of unnecessary RFEs in H1B cases for computer professionals, in particular.