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Questionable Requests with Questionable Motives

6 Aug

For the past few years, usually before it receives a deluge of new H-1B petitions in early AprilU.S. Citizenship & Immigration Services (USCIS) has implemented a partial suspension of its Premium Processing service, generally lasting three to six months for H-1B petitionsTrue to form, USCIS suspended premium processing this year as well, but this time the suspension was across the board for all types of petitions. USCIS justified these suspensions by explaining that they were necessary to reduce overall processing times and to review and adjudicate long-pending petitions in a timely manner because of the “high volume demands of incoming [H-1B] petitions and the surge in premium processing requests…” 

The suspension, even though it was implemented for only three months, ironically still created a significant backlog, and predictably resulting in more work for USCIS once Premium Processing was reinstated. The suspension also limited its funds because the filing fee for Premium Processing is $1,440. 

On May 29, USCIS implemented a three-phase return of Premium Processingand both employers and employees alike were anxious to quickly upgrade to the expedited filing optionDespite their enthusiasmPremium Processing is not always ideal for all eligible cases. While the upside of Premium Processing is a response from USCIS in weeks as opposed to months, the response is not always an approval. 

Applying for Premium Processing often yields unanticipated results, particularly after a suspension when USCIS is likely to receive thousands of requests in a very short period. This expedited service results in one of three possibilities: an approval, denial, or Request for Evidence (RFE) that prolongs the process and often increases the evidentiary burden on the petitioner and beneficiary. Though it does occur, USCIS rarely denies cases outright, so if a case is not approved, it most often receives an RFE. 

The issuance of an RFE generally grants the Petitioner or Applicant up to 87 days to provide the additional evidence outlined by USCISthough the Service has shown some flexibility with response periods due to the COVID-19 pandemic. For H-1B petitionsUSCIS often issues boilerplate RFEs that ask for proof that the position is one of a specialty occupation, that an employer-employee relationship exists, that there is enough specialty occupation work available during the requested period, or that addresses a third-party worksite. Recently, however, these requests have strayed from the “normal” to the questionable.  

For example, some RFEs have requested copies of valid passports when such information was provided and clearly noted on the forms in the original submissionWe have also seen requests for proof that the foreign national’s educational credentials are equivalent to a U.S. degree when the degree provided was from an accredited U.S. university. Other puzzling requests have been for missing filing fees when no filing fee was required or for transcripts to confirm the field of study when the degree already clearly stated that information (i.e., Mechanical Engineering or Computer Science). Submissions for the L-1 and TN categories are also receiving their own questionable RFEs. 

While the reinstatement of Premium Processing and the uptick in RFEs may seem disconnected, USCIS has all the incentive to delay its final decision-making from 15 days to three months or more. Issuing an RFE within 15 days of filing allows the Service to keep the Premium Processing fees and thus increase its coffers with much-needed revenue while allowing its staff additional time to “adjudicate pending petitions in a timely manner.” Thicircular justification may sound familiar since it is the very same reason USCIS usually gives as to why Premium Processing is suspended in the first place. The Service creates an artificial backlog then issues questionable RFEs as its preferred mechanism for dealing with it. By prolonging cases with questionable RFEs, USCIS has also made its handling of cases less efficient, which may have led to the alleged budgetary issues it claims to have. 

In fact, USCIS claims that unprecedented budgetary shortfalls due to the pandemic may require large-scale furloughs at the end of the month. If such furloughs were to occur, it would reduce USCIS adjudication resources, and this may lead the agency back into its familiar spiral of suspending the Premium Processing service, further reducing revenue, and increasing the likelihood of questionable RFEs after the suspension is lifted. 

Whether upgrading by necessity or not, just remember that Premium Processing, for all its benefits, is not always ideal.