Law Offices of Kamlesh Tewary, P.C.
USCIS has recognized the public furor surrounding the issuance of its January 8, 2010 memorandum on employer control in the H-1B context. On March 26, 2010, CIS held its second public session on the implications of the memo, this time focusing on contractors in the health care industry. Notably, USCIS officials stated that more formal guidance or possibly a revision of the memorandum was forthcoming. There was also a suggestion that rates of H-1B approvals have been unchanged since issuance of the memo. Perhaps most significantly, officials recognized that many adjudicators have been applying improper standards of evidence in their Requests for Evidence (RFEs). The proper evidentiary standard for nonimmigrant petitions is "preponderance of the evidence," which can be translated in layman's terms to "having just above a 50% chance of being true." In recent months many RFEs have requested "clear evidence" of eligibility, which is a higher and inapplicable standard. In other cases, the evidentiary standard is not stated, but the tone of the RFE and its ultimate disposition betray an overly exacting standard. USCIS headquarters will be issuing guidance to adjudicators at the Service Centers to treat RFEs as tools to help petitioners cure any deficiencies in their petitions, and not as de facto precursors to denials.
**Information in this press release is provided for information purposes only, and its presentation herein neither creates an attorney-client privilege nor constitutes legal advice.**
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