H1B Extension can be denied without RFE or NOID now - USCIS changes policy

Update Sep 12, 2018 - Checklist issued by USCIS

USCIS has published the informational ‘checklist’ for filing employment based work visas.

Example:
Petition for H-1B worker submitted without any evidence of the education or specialty occupation can be denied without RFE now.

USCIS Checklist for H1B Visa Transfer, Extension, Amendment

Make sure you follow the checklist in order to avoid denials without ever getting RFE.

  • Evidence the beneficiary maintained status if seeking a change of status or extension of stay

  • Evidence showing the proposed employment qualifies as a specialty occupation

  • Evidence showing the beneficiary is qualified to perform the specialty occupation

  • A copy of any required license or other official permission for the beneficiary to perform the specialty occupation in the state of intended employment (if applicable)

  • A copy of any written contract between the employer and the beneficiary or a summary of the terms of the oral agreement under which the beneficiary will be employed

  • An itinerary showing the date and places of assignment if the petition indicates that the beneficiary will be providing services at more than one location.

Update Sep 6, 2018 - Denial without RFE teleconference result

On 6 Sep, 2 to 3 pm EDT, USCIS held a teleconference to discuss USCIS Policy Memorandum on rejecting all visa applications
including H1B or any other, without issuing RFE or NOID.

Discussion details. Main points:

1. USCIS will create checklist for initial evidence

USCIS will release Optional Checklist on 09/11/2018 to help applicants find out what the “initial evidence” should be to avoid direct rejections.

2. Trained USCIS officers

USCIS said that they have given extensive training to their immigration officers on how to apply this new policy to differentiate between genuine and frivolous applications.

3. Rejection without RFE - Only applicable to cases filed on or after Sep 11, 2018

The new policy applies only to the cases that are filed on or after 09/11/2018 and will not apply to any cases which were filed before this date.

4. No need to worry if your papers are correct

The new policy is intended to punish applicants who try to game the system filing incomplete applications intentionally.
The policy will NOT affect applications with unintended errors.

USCIS says that they have taken this drastic step to reduce overall processing time of applications that are usually delayed due to RFEs, which they found were issued in almost 40% of cases.

We hope that this USCIS policy would weed out the fraud and help reduce H1B processing time by almost half!

Update August 24, 2018

Business Roundtable has sent an official letter to USCIS on their recent policy changes and how they affect the H1B families.

Letter in support of H1B is signed by Apple, ADP, American Airlines, Pepsi, Coca Cola among other CEOs to rethink their denial policies without issuing RFEs:

Uncertainty About Required Information: On July 13, 2018, USCIS issued a memorandum that allows adjudicators to deny petitions or applications on the basis that “initial evidence” was not submitted, yet the agency offered no guidance to adjudicators on how to apply the policy.
Companies now do not know whether a work visa petition that was approved last month will be approved when the company submits the identical application to extend the employee’s status.
This challenge is particularly acute for companies that hire H-1B professional workers where the government has narrowed eligibility criteria without issuing guidance to adjudicators or the public.

H1B extension can be denied without issuing RFE now

USCIS today (13 July, 2018) posted a another policy change that gives more power to its consultants regarding their discretion to deny an application, petition, or request without first issuing a Request for Evidence (RFE) or Notice of Intent to Deny (NOID).

They can now deny the H1B extension straightaway if any of the required document is not submitted or the evidence of record fails to establish eligibility with application.

Last week, USCIS changed its policy to allow issuing NTA (Deportation Order) if H1B application is denied.

This new rule will take effect from September 11, 2018 and applies to all applications, petitions, and requests.

Can missing H1B client letter cause denial without RFE?

Yes, it can.

A very real life example if non-inclusion of ‘ Client Letter’ in H1B extension, Transfer and Amendment application.
A high number of RFE’s issued on H1B applications ask for submitting ‘ SOW (Statement Of Work) ‘ and ‘ End Client Letters ‘.

Now, if you do not submit these important documents with your application, USCIS can straightway deny the petition without ever issuing any RFE since, these documents were required to prove your application eligibility in first place.

Can H1B wage Level 1 cause rejection without RFE?

Yes, it can.

We have seen recently that USCIS was issuing RFE’s for H1B Computer science Wage level 1 applications that are normally paid by software consulting companies to its workers working at client site.

These applications are now under threat as they can be denied without issuing RFE’s.

Can lack of Specialty Occupation cause H1B denial without RFE?

Yes, it can.

USCIS has been issuing a lot of additional evidence requests to prove ‘ Specialty Occupation ‘ and why the job profile mentioned in the H1B application can’t be performed by a college graduate.

Before this change, a CSE bachelor degree holder working as .net developer would have received and RFE to prove the job’s expertise.
The H1B may be denied finally but now, your application is bound to be denied without ever issuing RFE.

USCIS claims not issuing RFE will reduce H1B processing times

USCIS claims that they have changed this policy to avoid spending time on frivolous or merit less H1B applications that are currently issued RFE and NOID.

With this policy change, USCIS is giving full power to immigration officers to deny incomplete and ineligible applications and petitions.

Till this policy change, USCIS used to issue either RFEs or NOIDs when the evidence submitted at the time of filing did not establish eligibility and ask for submitting more proofs from H1B employer.

In reality, USCIS rarely denied the H1B extension or transfer without first issuing RFEs or NOIDs.

H1B can be denied without RFE after USCIS policy change
H1B can be denied without RFE after USCIS policy change

DACA applications cannot be denied without RFE or NOID!

The DACA applications are not affected by this new policy as courts in California and New York have given preliminary injunctions.
Seems like Trump administration is after legal immigration.

Source: policy memorandum (PDF, 113 KB)

Hi Anil,

Do we have any updates related to the teleconference about the H1B USCIS Policy change from Sept 11th, 2018?

-Chandra

Thanks @chandra for reminding me. I will check and update.

Hi @chandra
Updates have been added from teleconference in the first post above.

Its nothing much but USCIS did gave the assurance that genuine applications will not be affected.
But, you never know.

There are going to be cases which would have status issues with these immediate and sudden rejections with no H1B premium processing available till Feb 2019!