Ninth Circuit Court Rules Against USCIS?s Arbitrary RFE Thresholds

Yesterday, the Ninth Circuit Court of Appeals ruled against the U.S. Citizenship and Immigration Services (?USCIS?) in a case brought by the American Immigration Council challenging certain thresholds adopted in an EB-1 Extraordinary Ability immigrant petition case (Kazarian).? USCIS issued a request for evidence (?RFE?) and later denied the case.? In citing the basis for denial, USCIS stated that the petitioner had not sufficiently established that the beneficiary?s publications had received acclaim from the research community.? This standard is not required under the law.

The Ninth Circuit Court held that USCIS may not implement substantive or evidentiary requirements above what is established in the regulations.

The immigration community has seen an increase in requests for evidence over the past couple of years, including numerous instances in which novel and arbitrary standards have been listed in RFEs.? Perhaps this decision will send a message and reduce the incidence of such burdensome RFEs.? Although most cases are ultimately approved, it can create a significant hardship on petitioners/applicants and immigration practitioners to respond to requests that go beyond what is required under the law.

USCIS Updates Power of Attorney Signature Policy

The U.S. Citizenship and Immigration Services (USCIS) had previously issued a signature policy memorandum that would require signatures by an authorized company representative on all forms and letters for cases filed by the company.? This would remove a company?s ability to have forms and letters signed by outside counsel pursuant to a power of attorney letter.

For now, companies can continue to have forms and letters signed by authorized outside counsel, as USCIS has temporarily withdrawn its recent policy memorandum that would have required that signatures come from company representatives.? However, USCIS is expected to reissue a revised memorandum with future implementation date in the near future.

USCIS Confirms H-1B Numbers for FY2010 Have Been Exhausted

The U.S. Citizenship and Immigration Services (USCIS) issued confirmation that the FY2010 H-1B cap was reached as of December 21, 2009.? This means that a sufficient number of cap-subject H-1B petitions have been filed with USCIS to meet the statutory limitation of 65,000.? Any petitions received on December 21st will be subjected to a computer-generated random lottery process.? Any cases received after December 21st will be rejected.

With the surge of H-1B filings in October, the advanced U.S. degree cap of 20,000 had already been used up.? This is a reversal of the normal trend wherein the regular H-1B cap of 65,000 is nearly always exhausted before the advance U.S. degree set aside.

1 9 10 11