Reminder: New RFE policy, premium processing suspension to take effect soon

  • United States
  • 09/10/2018
  • Bal Global

Two key U.S. Citizenship and Immigration Services policies will go into effect Tuesday. USCIS will implement a new policy giving adjudicators more discretion to deny cases without first issuing requests for evidence (RFEs) or notices of intent to deny (NOIDs). It will also expand its current suspension of premium processing to cover most H-1B petitions, including transfer and amended petitions.

• New RFE policy. In July, USCIS published new policy guidance that will allow adjudicators to deny cases without issuing an RFE or NOID if initial evidence is not submitted to establish eligibility. This policy marks a break from the old one, which instructed adjudicators to issue RFEs unless there was “no possibility” that an application or petition’s deficiency can be cured by additional evidence. The new guidance will apply to all applications, petitions and requests that USCIS receives except for Deferred Action for Childhood Arrivals requests. Adjudicators will continue issuing statutory denials without requesting additional evidence as they do currently, but will have discretion starting Sept. 11 to reject applications that could be cured by additional evidence if the applicant has not provided the initial evidence to establish eligibility. USCIS stated during a teleconference this week that it will provide additional information on its website, which may include checklists of initial evidence.

• Premium processing suspension. In August, USCIS announced that it would extend its premium processing suspension for H-1B cap-subject petitions and expand the current suspension to include other H-1B petitions as well. Beginning Sept. 11, the only H-1B petitions that will remain eligible for premium processing are (1) petitions filed at the Nebraska Service Center to renew H-1B status with the same employer, provided there are no changes in circumstance; and (2) petitions filed at the California Service Center where the employer is cap-exempt or where the employee will be working at a cap-exempt organization. Petitions in the second category are typically filed by universities and nonprofit research institutions. The suspension is expected to last until Feb. 19, 2019.

Petitioners may still request expedited processing, but this is granted only in very limited circumstances such as an emergency, severe financial loss or USCIS error. USCIS encourages petitioners to provide documentary evidence in support of these requests. These decisions are made on a case-by-case basis at the discretion of USCIS.

BAL Analysis: BAL has routinely supported its clients in providing all initial evidence listed in regulations when a petition is filed. This has led to a very low RFE rate. Should the agency announce new requirements, BAL will work to adjust accordingly. Companies and applicants are encouraged to work closely with their BAL professional should additional information be requested.

With respect to the premium processing suspension, applicants should anticipate delays in H-1B processing for pending cap cases and for transfer and amended petitions that are filed on or after Sept. 11. BAL professionals remain available to advise companies on the impacts of the premium processing suspension.