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

2. We See More Requests for Evidence (RFE) Every Day
H-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 Process
When 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 Process
The 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 Process
Strategizing 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 Process
Some 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 Process
Some 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 Process
Some 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 Process
What 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 Degrees
Multiple Degrees – The One Degree Rule
Credential Evaluations
The EDGE Database

20. Common RFE Issues Experience Issues Calculating Experience
Part-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 Pay
Aytes 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 Income
Start -Ups With Growth Potential
Contracts/SOW’s/Purchase Orders/Future Business
Throwing Mud at the Wall

23. Common RFE Issues Corporate Identity Issues
Which 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 Issues
H-1B Visas
Simeio Amendments
Specialty Occupations
Licensure
Maintenance of Status (Students)
Remote Work

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