USCIS on Issuing RFEs, H1B Revocation, eFiling, and Other Matters
Posted Sep 12, 2008
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The USCIS Service Center Operations (SCOPS) responded to questions posed by representatives of the American Immigration Lawyers Association (AILA) on July 30, 2008. SCOPS addressed issuance of Requests for Evidence (RFEs) and Notices of Intent to Deny (NOIDs), using evidence from other sources, proper jurisdiction to file H1B revocations, the eFiling process, and USCIS policy with regard to adjudicating a second filing while the initial filing is on appeal.
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RFE or a NOID Should Be Issued before Denying a Case
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One question posed by AILA described a situation in which the USCIS makes a denial decision based on information not in the record without first issuing an RFE or a NOID. This practice should be precluded by the regulation (which states that, if the decision in a case is going to be adverse and it is based upon derogatory information of which the applicant or petitioner is unaware, the applicant or petitioner shall be advised of this fact and offered an opportunity to rebut the information and present information in his/her own behalf before the decision is rendered). The USCIS is exempt from this requirement only if it is relying upon classified information. As members of AILA have observed, denials often are based on information unknown to the applicant or the petitioner, contrary to the current procedures mandated by regulation.
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In response to this concern, SCOPS indicated that it had disseminated this information to the USCIS service centers that adjudicate cases.
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RFEs or Denials May Not Be Based on Wikipedia Information
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The USCIS has been known to use an ever-growing number of publicly available sources, including internet sources such as Wikipedia. AILA members have been receiving denials based on the USCIS's use of information found on Wikipedia, an online encyclopedia to which anyone in the world may contribute information. As such, it should not be considered an objective or completely reliable source of information. SCOPS advised that it has notified the service centers and there should not be additional RFEs or denials based upon Wikipedia.
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It should be noted that, as a corollary, applicants and petitioners should not try to use Wikipedia as support for their filings or arguments, since it has been deemed an unreliable source.
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H1B Revocations Should Be Filed with CSC or VSC
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Employers are required to revoke H1B petitions when employees are no longer employed by the H1B petitioner. Since the locations for filing H1Bs changed, questions have arisen as to where revocation requests should be filed. As MurthyDotCom and MurthyBulletin readers may recall from our March 16, 2007 article, USCIS Update on Filing Procedures for Forms I-129 and I-539, as of April 2, 2007, H1B petitions must be filed with either the California Service Center (CSC) or the Vermont Service Center (VSC). This replaced the prior filing system, which involved H1B filings with all service centers, including the Nebraska Service Center (NSC) and the Texas Service Center (TSC).
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All revocation requests must go to either CSC or VSC. This is simple if a case was approved by either of these two centers. The question addressed the cases approved by TSC and NSC before the rule changes. The USCIS clarified that, for cases in which the original petition was approved by NSC, the employer should send the request for revocation to CSC. If the H1B was approved by TSC, the revocation must be sent to VSC.
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eFilings Receive the Same Treatment as Traditionally-Filed Cases
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According to SCOPS, once the USCIS receives a case that was electronically submitted, it gets the same treatment as cases received via standard mail or other delivery services. This means that eFilings go into the same processing queue and are subject to the same processing times.
Filing of Second Petition While First Petition is on Appeal
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After denial of a petition, it is sometimes possible to file an appeal. This process may take a long time, since an appeal could take about two years for a decision. While the case is on appeal, the petitioner may decide to file a second petition with the USCIS. Due to status issues and other considerations, it may be advisable to file the second petition. However, the USCIS confirmed that the second petition will not be adjudicated until the appeal is resolved. It is sometimes more prudent to withdraw the appeal if the petitioner desires a faster adjudication of the more newly-filed case or petition. A procedural and strategic decision of this type should be discussed with an experienced immigration attorney. It may be possible to file a different case that arguably could be adjudicated even while an appeal is pending.
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Conclusion
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The SCOPS responses and information provide guidance for employers, employees, and their families. These insights and updates on current procedures are appreciated, and we are pleased to share this information with MurthyDotCom and MurthyBulletin readers.
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