Recently, I have been seeing some RFE's in H-1B cases with the title: "Student" Request for Evidence.

In variably, these RFE's have been lengthy, boiler-plate, kitchen sink ones, which attempt to make almost every imaginable objection to the H-1B petition involved, especially in three critical areas: 1) whether the employer is in fact able to offer a position at an H-1B specialty level; 2) whether the offered position meets the regulatory requirements for an H-1B "specialty occupation" and 3) whether the proposed H-1B employee is qualified for the offered H-1B position on the basis of education and or experience.

Admittedly, all of these issues, as well as others which others which can come up un the H-1B context, are often extremely technical and complex. One topic alone, namely whether an offered H-1B position qualifies as an H-1B "specialty occupation" is so complex (and subject to so much misunderstanding and distortion by Service Center H-1B examiners) that one could write a whole textbook (or maybe fill up an entire law library!) on this topic alone. I have been receiving RFE's on this topic alone for more than 20 years and will be writing on more detail about this in upcoming comments.

However, The "Student" RFE's I have seen, do not show appear to much interest in any serious discussion of the H-1B law and regulations. Instead, they only appear to be looking for pretexts - any excuse whatsoever, to question or deny a petition. In one such RFE which came to my attention, the examiner didn't even bother to get the facts straight.

This particular "Student" RFE misstated the H-1B beneficiary's educational background, claiming that the person had a bachelor degree majoring only in a general field rather than any specific specialty related to the offered H-1B position.

The RFE then argued that since the employer had offered the H-1B job to someone who allegedly had only a general bachelor degree, not a specialized one, that showed that the employer itself did not consider the position to be a specialty occupation, and therefore the position failed to qualify as for H-1B.

The RFE then went on to claim that the employee-beneficiary of the petition was also unqualified for the position because of alleged failure to have a specialty bachelor degree

In reality, the H-1B beneficiary's bachelor degree was in a specific specialty major directly related to the offered position.

This was only one example of an RFE written by someone who hadn't bothered to read the submitted documents fully and correctly, but who seemed to be interested only in finding reasons to dispute or deny the petition. And the above mistake did not appear to be a casual misstatement resulting from time pressure on the examiner or some other "excusable" factor

The RFE repeated the examiner's false statement about the H-1B beneficiary's education again and again. It would not be an exaggeration to say that this falsehood (again, not the only misstatement of fact in the RFE) was the actual centerpiece of the RFE.

But a casual approach to the truth of a given H-1B petition, along with almost total lack of interest in accurately interpreting the H-1B regulations themselves, is typical of "Student" RFE's - at least the ones that I have seen..(Not that this kind of adversarial, slipshod approach to adjudication is absent in "regular" RFE's either- it certainly is not.)

What are the USCIS Service Center examiners who issue H-1B "Student" RFE's actually "studying" - besides how to dispute, delay and deny valid employment-based petitions in order to to carry out an agenda imposed by a president who has just fired the nationwide USCIS director for not being "tough" enough on legal immigration?

It would be better if H-1B (and examiners in other employment-based cases) spent more time "studying" how to show more respect for the legal and human rights of both H-1B petitioning employers and employee beneficiaries (and the parties in other employment-based cases) to fair and just decisions based on the actual facts and law of each case, rather than blindly issuing argumentative and biased RFE's and denials in pursuit of an anti-immigrant agenda.

Roger Algase
Attorney at Law
(Harvard Law School LL.B)