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Immigration Authorities Started Issuing Demands for $100K H-1B Visa Fee: All You Need to Know

Immigration Authorities Started Issuing Demands for $100K H-1B Visa Fee: All You Need to Know

According to the reports of several news outlets, the USCIS has started releasing Requests for Evidence demanding payment of the newly imposed H-1B fee. However, these most recent RFEs issued by the USCIS have stirred quite a confusion and complexity. The recent issuings stemmed from the presidential proclamation made in September.

We have now come to know from several reports made by the Economic Times and the Times of India that there has been a recent rise in issued RFEs for the H-1B fee. Moreover, the recent increase in RFEs is spreading perplexity and panic among the visa holders and the employers. The reports also added that there is news of RFEs coming to cases where the fee requirement is not applicable. On another note, an RFE is a formal notice issued by the USCIS when an immigration officer determines that an application/petition lacks sufficient documentation or fails to fulfill certain requirements.

As a leading EB-1A green card consultancy, here is our detailed breakdown and analysis of the news.

New arrivals of RFEs amidst foggy guidelines

A report by the Economic Times suggests that immigration experts have recently seen a significant uptick in RFEs, even in cases and circumstances that were previously cleared by USCIS guidelines.

The founder of The Visa Code, Gnanamookan Senthurjothi, has told the Economic Times that some RFEs are being sent specifically for the H-1B recapture time cases. The latter cases usually involve reclaiming unused time from the overall six-year visa limit. The H-1B recapture time provision allows individuals to recover the unused portions of their six-year time in the U.S. by making a formal request to the USCIS. Hence, the recent RFEs have caused quite an ambiguity and turmoil with respect to the proclamation, despite the guidelines stated in USCIS Newsroom.

Moreover, Adam Rosen, a managing attorney at the Murthy Law Firm, has delivered interesting insights to ET about a subtle yet crucial flaw in the language of the proclamation. According to him, the ambiguity is already in the proclamation’s text: “The proclamation used the term ‘visa’ interchangeably with ‘status’ despite both holding separate meanings independent of one another.”

Rosen also touched upon the validity of the fee requirement. He raised a question regarding who should be asked for the payment: the petitioner or the entering beneficiary?

What the legal experts are saying?

If these types of RFE requests get triggered, there are still a few legal steps you can take. For instance, the experts usually have suggested a dual legal response strategy. Initially, you can submit a response demonstrating the fee exemption criteria announced in the USCIS newsroom. If the appeal gets denied due to non-payment, according to Rosen and others, you can also challenge it in the federal court. In this context, it is essential to remember that there are already a bunch of cases issued against this proclamation of fees.

Boundless Immigration’s CEO, Xiao Wang, has suggested a very plausible solution to the ambiguity: the applications that are receiving the RFEs are most likely processed between the time of the first fee announcement and USCIS’s final October 20 formal guidance about the fees. Hence, according to him, the REFs should not be interpreted as another change of policy on the administration’s part.

As one of the leading EB-1 experts, GCEB1 is staying in tune with the volatile visa landscape. We are constantly updating our insights, guidance, and analytics here. If you have any specific queries about transitioning from H-1B to EB-1A, you can directly reach out to us here.

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