Friday, December 26, 2014

Why Request for Evidence (RFE)?–Recent Trends

On a mission to eradicate fraud, USCIS is increasingly responding to petitions with burdensome Requests for Evidence (RFE). Over the past years, different trends has been observed, such as:
End Client
The USCIS recently changed the format of their Requests for Evidence (RFE) for petitions where the employee is located at a client site. In the past, the focus of these types of RFEs
centered around the employer/employee relationship, but now, they have
started questioning whether the position at the end-client requires a
minimum of a bachelor’s degree.
These RFEs
seem to be targeted at IT staffing companies because they include
language that says that the record indicates the petitioner “is in the
business of locating persons with computer-related backgrounds and
placing these individuals in positions with firms that use such
personnel to complete their projects.”
The RFEs
suggest that in order to overcome USCIS's doubts, employers must
provide copies of signed contracts, master agreements, work orders,
statements of work, services agreements and letters between the employer
and authorized officials of the ultimate end-client companies and that
these documents should contain a description of the duties, the
requirements for the position, salary, hours worked, benefits and a
brief description of who will supervise the employee.
The USCIS has in the past has placed an emphasis on education and has been issuing RFE where they are asking about:
  1. Education
    evaluation from a reputable evaluation company. Further, if the
    evaluation requires a combination of education and experience to equate
    to either a 4 year degree or a degree that is relevant to the position,
    the USCIS is requiring evidence establishing the evaluator's credentials
    and qualifications. It is important that Sponsors who sponsor H1B
    applicants with foreign degrees get their evaluations from credible
    evaluation companies and that they submit the evidence regarding the
    evaluator’s credentials and qualifications.
  2. How a person’s
    degree relates to the position. They are questioning this more
    frequently so it is important to verify that there is either classwork
    or experience that an H1B applicant can show in order to prove that
    their education/experience is relevant to the position that is being
    filed for on their behalf.
Right to Control
USCIS continues to question an employer’s ability to control their
employee when that employee is located off-site. Further, they question
the employer’s employer/employee relationship and how the employer
intends to maintain this while the employee is working at a client site.
These doubts have been raised since the Neufeld memo was published in 2010.
An end-client letter which states that the project/assignment will last
for 3 years resolves this issue, but in most cases, end-clients are
hesitant to issue these types of letters as they feel that it can be
construed as a contractual commitment to that consultant and their
Other Notable Observations
  • Although
    additional scrutiny has affected companies of all types and sizes,
    those that design and/or produce products are not nearly as hard hit as
    companies that provide IT services.
  • USCIS is increasingly
    tallying and tracking cases filed by each company. Companies that file a
    disproportionately high number of petitions relative to its overall
    headcount often face more burdensome RFEs.

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