Many years ago, I saw a baseball cartoon where the batter was facing an opposing pitcher who was also the umpire. From a lawyer's point of view, it would also be like arguing a case in court where the opposing lawyer is also sitting on the bench and wearing a judge's robe.

How fair or unbiased a decision could one expect to receive in either of the above circumstances?

But this is what answering an RFE in an H-1B case must feel like for many lawyers and petitioning employers, where the RFE often consists of detailed and forceful arguments against approving the petition of the kind that an opposing counsel would normally make in a contested court case or administrative proceeding, but unlike those proceedings, the "opposing counsel" is also the person who will be making the final decision in a petition before a USCIS Service Center.

This issue is exceptionally important this year in H-1B cases, where, by all reports, there has been a hurricane of RFE's this year. Judging by the ones that I have received myself and am now in the process of responding to, they are even more adversarial, and at least in some cases openly biased or incompetent, or both, that it might almost seem as if Donald Trump had written them all personally. Obviously, of course, he did not, but it is not hard to detect his "Hire American" attitude, which runs counter to the essence of the H-1B law itself, in reading many some of the RFE's which have been sent out this year.

The following comments will deal specifically with the issue which, over the years (since Trump did not invent the concept of biased or ignorant RFE's - these have been around at least since the Clinton presidency), I have found to be of the greatest importance in H-1B RFE's - and in some cases, the most challenging to answer.

This issue is not, as might be expected, one of the H-1B beneficiary's individual qualifications, but rather, whether the H-1B offered job qualifies as a specialty occupation. In that context, I would like to suggest a general approach for answering all H-1B (and other) RFE's:

Don't be intimidated by the RFE!

Beyond that, there are three specific rules in H-1B cases where the RFE claims that the position is not a specialty occupation: Theses rules are as follows:

1. Read the OOH (US Department of Labor's Occupational Outlook Handbook) and study it carefully!

2) Read the OOH and study it carefully!

3) Read the OOH and study it carefully!

I will explain these three rules further in my next forthcoming comment on this topic. As an introduction, however I start with the general subject of fairness in H-1B adjudications. This is an issue which has been important for many years, and which has been indirectly recognized by USCIS for a long time in public or private statements using the euphemisms "quality of adjudications" or, sometimes, in the case of an RFE or denial from an exceptionally incompetent or biased Service Center examiner, "training issue".

This year, however, the issue of fundamental fairness in H-1B RFE's is especially acute, not only because of the numerous attacks on this visa which are being made by the president and other immigration restrictionsists in his own party, but because of the sheer volume of RFE's.

Attorney Cyrus Mehta, for example, reports in his September 27 article on this topic that between January 1 and August 31, 2017 USCIS issued 85,000 RFE's for H-1B petitions alone, a 45 per cent increase in such RFE's over the previous year, even though the number of H-1B petitions went up by less than 3 percent.

This is equivalent to one RFE for every single new H-1B cap-subject H-1B case filed this year, since there are only 85,000 total cap-subject H-1B visas available each year. (Of course, some of the RFE's may have been for H-1B extension or transfer cases - not all were necessarily for new cap-subject cases).

However, it is not only the extreme increase in the volume of RFE's this year that raises issues of fundamental fairness in the adjudications process for H-1B petitions, but their contents.

My next comment on this topic will discuss this point in more detail.

Roger Algase
Attorney at Law