May 6 2004

Denial of an Application Petition without RFE Issuance

The memo, issued by William Yates, USCIS's Associate Director of Operations, instructs USCIS adjudicators to cease the issuance of Requests for Evidence (RFEs) in cases of clear ineligibility. In such cases, provided the record is complete, USCIS feels that issuance of an RFE is discretionary, and it is instructing adjudicators to deny such cases without an RFE.

The potential significance of this point is enormous, in that it becomes much more important to ensure that all relevant documentation is submitted at the time the case is filed. On this point, please remember that in H-1B cases, it is the employer's responsibility to ensure that it has clearly established that the Beneficiary is qualified for the offered position. Specifically, unless the employer establishes the Beneficiary's eligibility, it is entirely possible that USCIS will deny such cases without issuing an RFE. Until now, USCIS has issued RFEs instructing the Employer to supplement the case with additional information to establish how and why the Beneficiary is qualified for the specialty occupation.

In light of the new policy, in cases for Programmer Analysts, Software Engineers, and other IT related positions, the Beneficiary should possess a Bachelor's degree in a relevant discipline, such as Computer Science. In cases where the Beneficiary possesses a degree in an unrelated field, such as Mechanical Engineering, Chemical Engineering, etc., it is imperative that the Beneficiary provide detailed letters verifying a minimum of three years of work experience in IT/computer science positions of increasing responsibility while working under, alongside, and/or in supervision of other degreed IT professionals. Such letters should list dates of employment and specific duties. It is important that these letters be provided before the case is initially filed with USCIS, as the guidance contained in USCIS's memo may result in an outright denial of cases where such evidence is not presented at the outset.

Of course, as the memo indicates, this policy applies to all cases, not just H-1B matters.