USICS starts issuing RFEs for $100K H1B fee

Washington: The US Citizenship and Immigration Services (USICS) has started issuing Requests for Evidence (RFEs) demanding payment of the newly imposed $1,00,000 H1B visa fee. These RFEs issued by USICS has triggered confusion and concerns among the immigration attorneys and employers.

This move made by USICS follows the Presidential proclamation made in September this year. As per the new order, the fresh H1B visa applications will now be charged a fee of $100,000. Reports suggest that the increase in the number of RFEs is creating confusion as these requests are appearing in cases where the fee requirement is not applicable.

The RFE is a formal notice issued by USCIS when an immigration officer determines that a petition or application lacks sufficient documentation to make a decision. According to reports, the immigrations experts reported a noticeable demand in RFEs even in cases where the fee may not apply. This has raised alarms about misinterpretation of the proclamation’s scope.

Immigration experts claim that there is a critical flaw in the language of the proclamation. They said the proclamation uses “visa” and “status” interchangeably, despite their distinct legal meanings. Along with this, they also questioned the legality of imposing the fee on petitioners rather than beneficiaries, suggesting this could be challenged under Section 212(f) of the Immigration and Nationality Act.

Many lawsuits have already been filed, including the one by the US Chamber of Commerce and H1B advocacy groups, challenging the fee’s legality. Attorneys are now advising a two-step approach which includes responding to RFE with USCIS’s own guidance to argue exemption and if denied then pursue further federal litigation.

The report further adds that this financial and legal uncertainty is compelling the companies to rethink their H1B sponsorship strategies. Due to this many companies, instead of going for litigation, are now considering to pause the oversea hiring, relocate talent abroad, or invest in domestic upskilling to avoid the steep fee.

As per the reports, Indians account to 70% of all the H1B visas and they are the ones who are affected the most by this development. The increase in the number of RFEs and legal ambiguity could delay processing time and increase cost for both applicants and sponsoring companies.