Aligned with the President’s “Buy American and Hire American” Executive order – signed on April 18th – USCIS continues to work on a combination of rulemaking, policy memoranda, and operational changes. Clear indicators that CIS is working hard to eradicate fraud is the increase in the issuance of Requests for Evidence, or “RFE”s across the board on all types of employment-based visa petitions, particularly with H-1B visa petitions. The processing times for a noticeable number of H-1B petitions have also increased with the continued suspension of Premium Processing and several caseload transfers.
H-1B cap-subject petitions are generally filed during the first week of April, with the annual quota of 85,000 slots filled almost immediately within that first week. In previous years, it took approximately 5 months to receive updates on these petitions. Status updates came in the form of Approvals or Requests for Evidence, usually by mid-September at the latest. During the adjudication process, USCIS sometimes will request additional evidence be submitted. Such requests are known as Requests for Evidence, or RFEs. The maximum response time is generally 12 weeks for an RFE, however, this may vary based on the type of evidence requested by USCIS. This past year, there was a significant increase in processing times and the issuance of RFE’s, as well as several caseload transfers within USCIS.
CIS began accepting H-1B petitions subject to the Fiscal Year 2019 cap on April 2nd, however, on March 20th, the Service announced that it would be suspending premium processing for all FY 2019 cap-subject petitions. It was reported that the suspension was expected to last until September of 2018. On August 28th, CIS extended and expanded the suspension. This extension and expansion primarily affected H-1B petitions filed at the California and Vermont Service Centers. Although these suspensions were meant to reduce delays, CIS continued to issue several additional alerts regarding the transfer of cases over the coming weeks.
On October 1st, CIS transferred some H-1B cases from the California Service Center to the Nebraska Service Center. On October 30th, CIS transferred another batch of H-1B cases from California to Nebraska. A recent review of case processing times for H-1B petitions shows that the California Service Center is taking 7.5 to 10 months to adjudicate these types of cases.
This year, there was certainly an increase in the number of RFE’s issued. Several factors may trigger an RFE. The primary reason for an RFE for these petitions appears to be lack of evidence to establish that a position qualifies as a specialty occupation, that is, an occupation that requires a bachelor’s degree or higher. Receiving an RFE may further delay the H-1B processing time. Our offices have handled a wide range of H-1B petitions as well as responses to RFE’s with much success. For an example of a tough H-1B RFE our Orange office tackled recently, please see this article .
With the year coming to a close and the next H-1B season fast-approaching, it is best to speak with an experienced attorney about the entire H-1B process in order to get a head start and plan accordingly. Here at W & O, our team of experienced attorneys have dealt with numerous H-1Bs and would be delighted to assist you with yours. We have offices in Orange, Fresno, Riverside, Sacramento, San Bruno, California, as well as Orem and Salt Lake City, Utah, and Boise, Idaho. We offer a free in-person consultation.
ABOUT THE AUTHOR(S)
Nancy Vo is an Associate Attorney at Wilner & O’Reilly. She graduated Magna Cum Laude from Whittier Law School. While at Whittier. She was an editor on Whittier Law Review and earned a CALI award in Legal Writing. She earned a Bachelor’s Degree in Political Science and Public Law from the University of California, San Diego. She works in the firm’s employment-based practice where she focuses on non-immigrant applications for Aliens of Extraordinary Ability, L-1 intra-company transfer visas for executives and managers, and E-2 treaty visas. Ms. Vo grew up in Los Angeles with three older sisters and parents who were all refugees from Vietnam. She is a first generation Vietnamese American and the first in her family to enter the legal field.
RICHARD WILNER – FOUNDING PARTNER
Richard M. Wilner is a founding member of Wilner & O’Reilly, APLC and is Board Certified by the State Bar of California as a Specialist in Immigration and Nationality Law. He is admitted to practice law in the State of California and before the U.S. District Courts for the Central, Northern and Southern Districts of California, the Northern District of Texas, the U.S. Court of Appeals for the Ninth Circuit and the U.S. Supreme Court.Mr. Wilner has received the coveted Martindale-Hubbell AV Rating, the highest legal and ethical rating that one can receive from one’s peers in the legal community. Similarly, he has been awarded the title of Super Lawyer from 2007 to the present. He is best known for his work in advising Fortune 500 companies, middle and small market businesses, entrepreneurs and foreign nationals of extraordinary ability in athletics, arts, and sciences in the complex area of U.S. Immigration and Nationality Law.
 Premium Processing Service refers to the optional service provided by USCIS for expedited processing of certain employment-based petitions. For an additional fee of $1,410, CIS guarantees 15 calendar day processing or CIS will refund the filing fee.