• The New Age of RFEs

    The Request for Evidence (RFE) is intended to be a valid inquiry into one or more aspects of a foreign national’s petition or application to USCIS.  A reviewing officer may ask for documents that might have been mistakenly omitted or they may request additional supporting evidence to further ascertain how an applicant meets the regulated visa criteria.  With the current presidential administration, there has been a marked increase in RFEs and denials.  While there have been no new laws or regulations passed that have changed the qualifying criteria for various nonimmigrant and immigrant visas, there have been several policy changes affecting the USCIS review process that have opened the door for this increase in RFEs across all visa categories. 

    Buy American, Hire American Executive Order

    In April of 2017, President Trump signed an Executive order entitled “Buy American, Hire American” with the intent to create higher wages, increase employment for U.S. workers, and “to protect the interests of the United States workers in the administration of our immigration system, including through the prevention of fraud or abuse.” (Presidential Executive Order)  This order specifically targets the H-1B visa program which was immediately impacted.  According to the National Foundation for American Policy (NFAP), USCIS produced RFEs in the 4th quarter of FY2017 nearly equal to the total number of RFEs for the combined first three quarters of FY2017 (National Foundation for American Policy).  This aggressive H-1B review process has continued, resulting in a current H-1B denial rate that has quadrupled since 2015.

    Rescinding the Deference to Prior USCIS Determinations

    In October of 2017, USCIS issued a Policy Memorandum that it would rescind its policy regarding the deference to prior approvals for nonimmigrant petitions, when adjudicating renewals or extensions for these same cases.  (PM-602-0151)  This change means that renewal or extension of a petition that has received prior approval is now reviewed with the same scrutiny as a completely novel petition – even if there is no new evidence since the prior filing.  Previously, if there were no material changes in a case, USCIS would defer to the prior approval ruling as the beneficiary was not required to reprove the merits of the case.  The shift in policy obliges applicants to resubmit documentary evidence that has already been reviewed and approved by USCIS, resulting in unnecessary paper production as well as increased time spent by USCIS in the adjudication process.  As officers are pressed for time to review more and more petitions, they are likely to disregard or overlook evidence.  This results in an RFE for clarification or supporting documentation that may have been already been included in the filing.

    Misinterpretation of Regulated Criteria

    There has also been a noticeable change in the way USCIS officers interpret the regulated criteria.  With O-1 visas, for example, USCIS has been interpreting criteria far more strictly than ever and disallowing evidence that had generally been acceptable in the past.  Regarding the standard for “Published material in professional or major trade publications, newspapers or other major media about the beneficiary and the beneficiary’s work in the field for which classification is sought” (O-1 Eligibility, EB-1 Eligibility), USCIS used to accept media about the foreign national’s work even if they were not directly named in the article.  We are now seeing more and more RFEs disqualifying this evidence because the applicant is not specifically mentioned in the media. 

    Similarly, supporting documentation for command of a high salary (for both O-1 and EB-1 visas) has been held to an unduly high standard over the past several years.  Not only does USCIS now require extensive field-specific wage comparisons and detailed employment agreements, RFEs often include language that discredits the evidence because the beneficiary’s wage is not at the very highest end of the wage range.  This is a clear misinterpretation of the regulation.  Many applicants legitimately satisfy this criterion since they earn an annual wage that is significantly higher than the average wage for their position and geographic location – they need not earn the highest possible wage.

    Over the past few years, there has also been an increase in the seeming randomness of RFEs.  Evidence that once met the regulatory standard is now often excluded through technicalities or simply ignored.  Additionally, applicants are frequently held to a higher industry standard than what the regulations imply.  In some cases, RFEs include incorrect information about the petitioner, beneficiary, or evidence provided.  It’s reasonable for USCIS officers to use templates for RFEs; however, when an RFE references an incorrect job title or field of expertise or erroneously comments on evidence, one can’t help but question the officer’s full attention to the review process. As such, even the most well-deserving and thoroughly prepared cases can receive RFEs for seemingly arbitrary rationale.  Whether it’s providing additional supporting documentation or “respectfully” clarifying evidence submitted in the initial filing, the timely response must be comprehensive in addressing all issues raised in the RFE.  Receipt of an RFE can be intimidating (and, sometimes, infuriating) but the key is to remain calm and connect with an experienced immigration attorney to determine the best response strategy.  Accel Visa Attorneys is on top of trending RFE issues for all visa types – contact us for more information.

  • The Truth About Awards for O-1 Visas

    The year 2020 was a groundbreaking year for the Oscars because the movie Parasite took home the most awards; Best Picture, Best Directing, Best International Feature Film and Best Writing (Original Screenplay). As writer, director and producer, South Korean national Bong Joon Ho received a full sweep of honors. (It is also notable that Parasite received BAFTA awards for Best Foreign Language Film, Best Original Screenplay, and nominated for Best Film and Best Direction).

    As an immigration attorney, all I could think was how Bong Joon Ho could easily qualify for an Extraordinary Ability visa (O-1 visa and EB-1 visa) to work in the U.S. For the uninitiated, both the O-1 and the EB-1 visas can be obtained for individuals who have received a major, international award such as a Nobel.

    In my experience, receipt of an Oscar, Emmy, Grammy, Tony or similar type award can usually qualify an individual for an O-1 or EB-1 visa since most adjudicating immigration officers consider these awards to be major, and international in scope. Ironically, Boon Joon Ho himself, in an October 2019 interview with Vulture magazine, stated that, “The Oscars are not an international film festival. They’re very local.” In other words, the Oscar awards was a local event, made and produced for and by Americans. Perhaps his statement that the Oscars are not an international event may have merit.

    While adjudicating immigration officers in the U.S. would most likely interpret the receipt and/or nomination of an Oscar award as having met the threshold for an O-1 visa, it’s been our experience that officers examine awards from other countries with more scrutiny.

    Not All Awards Are Equal

    Some awards are well documented and have a long history, such as Nobel, Fields Medal, BAFTAs, Oscars and many others. However, the lesser known awards, particularly those that are regional or industry-specific, may be more difficult to include as evidence to support an O-1 visa. Adjudicating officers have no way to determine whether an award is truly prestigious and elevates the individual above her peers without the proper context such as how the award was judged, by whom, how many entered, and how often the award was issued.

    Often, I ask the individual, what was so different about this award? Did the award elevate the individual’s status, or was the award given as a result of the individual’s stature in the community? Ask these questions and you may find very interesting responses that can further guide you on the eligibility for an O-1.

    Yet, even with the proper context, awards from countries that have better infrastructure and the luxury to develop a robust cultural and economic offering may fare better than awards from countries that are lacking in these areas. This may be due to lack of available documentation, or simple outdated prejudices. Therefore, it’s important for individuals to carefully consider their qualifications in the greater context of the O-1 regulations.

    Curious to learn more about preparing a successful O-1 visa? Contact our experienced team for more details here.