Immigration Service Targets H-1B Visa Holders For Adverse Information

Introduction to Unusual Requests for Evidence

United States immigration officials are issuing Requests for Evidence for H-1B and employment-based immigrant petitions, asking for home addresses and biometrics. Attorneys are worried because U.S. Citizenship and Immigration Services have not made such requests before. These requests are connected to USCIS claims that the agency has “adverse information” on individuals. It remains unclear if Trump administration officials have added employment-based visa applicants to its plans to identify and deport people lawfully in the United States, or if the requests serve another purpose.

Immigration Cases Start Receiving Unusual Requests For Evidence

When filing petitions for H-1B visas and I-140s for employment-based green cards, attorneys have received Requests for Evidence referencing “potentially adverse information.” The requests ask for the beneficiary’s residential address so that USCIS can collect their biometric information. “This is highly unusual because biometrics are not typically required for these case types,” said Vic Goel of Goel & Anderson. “The RFEs also fail to explain the nature of the adverse information, leaving employers and attorneys in the dark. It appears that DHS may be using AI tools to flag individuals based on undisclosed data, possibly from social media or other government databases," Goel said.

Nature of the Requests for Evidence

In one Request for Evidence, a USCIS adjudicator wrote: “We have encountered potentially adverse information related to the beneficiary. To continue processing your application or petition, we required an updated address for the beneficiary so that we may collect biometric data.” It then asks that “the beneficiary’s current and updated residential address” be submitted. “These RFEs are unusual because they don’t follow the process that USCIS historically has applied,” said Kevin Miner of Fragomen. “Information exchange for most employment-based petitions is done in writing. The company files a petition and explains why the foreign national qualifies for the H-1B or other work-authorized status that is being requested. If USCIS has questions after reviewing that filing, the agency issues a Request for Evidence explaining what remains unclear about the eligibility, and the company then responds.”

Concerns Among Immigration Attorneys

Miner points out that these Requests for Evidence differ because they do not ask substantive questions. Instead, the requests only state that “adverse information” about the beneficiary exists and the agency needs biometrics. Attorneys note that biometrics are not a typical part of the H-1B, I-140 or other employment-based petition process. U.S. Citizenship and Immigration Services has not provided any notice about a process change. USCIS did not respond to a request for comment to explain the purpose of the Requests for Evidence.

Immigration Attorneys Weigh The Best Course Of Action

When a government agency introduces new policies without notice, employers, attorneys and affected individuals are left wondering how to proceed. That applies to the current situation. “For now, I recommend not responding directly to the RFE by providing the beneficiary’s address or scheduling biometrics,” said Goel. “This is because this information is already in the record, and more pointedly because it is unclear why USCIS is asking for it. Instead, the attorney or petitioner should respond by citing 8 CFR 103.2(b)(16)(i), which requires USCIS to disclose any derogatory information being used as a basis for an adverse decision.”

Future Implications

Miner agrees with that approach to the Requests for Evidence. “Like responding to any other request for the government, the employer should endeavor to provide USCIS with the information it needs to be able to make an appropriate decision on the employer’s request,” Miner said. “In some instances, this could include asking USCIS as part of the RFE response to provide more information about what sort of adverse information it has identified about the beneficiary so that the employer can try to address those concerns. Because USCIS has only recently begun issuing these requests, we don’t yet know what further steps USCIS will take once the employer responds to the request.” Goel said that, without transparency about the source and substance of the information, “petitioners are unable to meaningfully respond or defend” against potentially erroneous allegations.

Conclusion

The USCIS Requests for Evidence occur while the Trump administration deports international students for minor infractions, protests and op-eds, raising alarm bells for employers and universities concerned about attracting talent to the United States. The last thing employers want is a new policy that makes it more challenging to hire or retain talent. The H-1B visa category is already the most restrictive in the U.S. immigration system, with only 20% of new H-1B applications turned into approved workers under the 85,000 annual limit. Companies and immigration attorneys are in a “wait and see” mode, unsure if these unusual Requests for Evidence foreshadow new restrictive measures.

FAQs

• Q: What is the purpose of the Requests for Evidence issued by USCIS for H-1B and employment-based immigrant petitions?
  A: The purpose is unclear, but it involves collecting biometric data due to “potentially adverse information” about the beneficiaries.
• Q: Are biometrics typically required for H-1B or employment-based green card petitions?
  A: No, biometrics are not typically required for these types of petitions.
• Q: How should employers or attorneys respond to these unusual Requests for Evidence?
  A: It is recommended not to respond directly by providing the beneficiary’s address or scheduling biometrics. Instead, cite 8 CFR 103.2(b)(16)(i) to request disclosure of any derogatory information.
• Q: What are the implications of these Requests for Evidence for international students and the U.S. immigration system?
  A: The implications are uncertain but may further restrict the already limited H-1B visa category and make it more challenging for employers to hire or retain international talent.