As a lawyer who has been concentrating in H-1B and other skilled worker immigration cases for the past three decades. RFE's in these cases (which used to be known as "Kickback Letters" quite a few years ago) are hardly any surprise in my office. Nor is it a new experience to receive RFE's from USCIS, or its predecessor INS which show a casual, or careless attitude at best toward the facts and the law of a given case.

But during most of this period, the majority of RFE's in my experience raised genuine issues relating to the case and were, in most cases, open to considering the new evidence or arguments submitted in response fairly and objectively, In my case, most of my RFE responses led to final approvals.

But judging by the RFE's from USCIS which I have been coming into contact with presently, the days when those notices limited themselves to genuine issues, rather than engaging in argumentative distortions, or outright false representations concerning the plain facts or law of a case, are far gone. The following are some recent examples:

Item 1: In an H-1B case, the RFE stated over and over again that since the employer had allegedly hired the sponsored H-1B worker with only a general bachelor's degree, not one in a specific field related to the offered position, that was proof that the offered job was not an H-1B "specialty occupation" and that the worker was not qualified for the position.

Only one problem: The sponsored worker had a bachelor's degree majoring in the exact specialty involved. The examiner had apparently never bothered to read the worker's transcript.

Item 2: In another H-1B case, the RFE, not content with egregiously distorting the OOH (Occupational Outlook Handbook) to argue that the position was not a specialty occupation - a strategy that H-1B examiners have been using for a long time - also went back over the sponsored worker's entire immigration history to argue that the person had failed for maintain previous nonimmigrant status for various reasons.

Every reason mentioned in the RFE for the person's allegedly failing to maintain legal status was totally false and was evidently concocted out of thin air.

Item 3:
In another H-1B case, the examiner issued an RFE which also seriously distorted the plain meaning of the OOH in order t argue that it did not support the conclusion that the position was a specialty occupation. In reply, the petitioner submitted a fully detailed, carefully explained, opinion letter by a qualified professor of high professional standing.

The US Service Center issued a denial decision which did not even discuss the opinion letter, because the decision stated that USCIS was n required to consider and material that conflicted with its own "information" about a case. In this case, the "information" in question was only the examiner's own distorted and quite obviously biased reading of one or two general sentences in the OOH about the offered position.

Item 4:
In an O-1 extraordinary ability case, and RFE demanded an itinerary of engagements when none was required since the petition was file by an employer, not an agent. The RFE also refused to accept an O-1 consultation letter because (according to the RFE) the letter didn't give enough reasons for concluding that there was no objection.

But an explanation of reasons for issuing No Objection is not required by any regulation. An explanation is required only when there is an objection. On the merits of the case, the RFE ignored almost all of thoroughly documented evidence of the beneficiary's achievements and only focused on one or two items which the examiner thought were weak points.

The above examples are only a few instances of bias, distortion, and unwillingness to follow the regulations which I am sure that many other attorneys and immigration practitioners are also receiving.


In my last (August 23) comment, I cited an article in ThinkProgress about the way that the Trump administration is destroying whatever is left of immigration judges' independence in order to turn the immigration court system into a vast deportation machine.

The current epidemic of hostile and biased skilled worker RFE's from an agency that is now headed by a rabid anti-immigrant zealot and Trump apologist, Ken Cuccinelli, should be a warning that USCIS may be turning into a vast denial machine.

This agency could be well on its way to becoming just another cog in the Trump-Miller white nationalist anti-immigrant agenda of authoritarian power in place of democracy, the rule of law and fundamental human rights.


Roger Algase
Attorney at Law.
algaselex@gmail.com