I would like to make a clarification: in my December 7 ID blogging, I made reference to comments by two other attorneys who had received obviously incompetent and/or biased RFE's from USCIS examiners in H-1B cases, Greg Siskind (December 6 ID) and Jacob Sapochnik (December 5 ID). I also described some appoaches that I use when I file H-1B cases, one of which is to provide a detailed job description.
I did not mean to imply in my comment that either of these two distinguished attorneys had omitted to provide detailed job descriptions in the cases that they described; I am sure that both of them did provide job descriptions, as well as doing everything else that a top level H-1B lawyer normally does to support an H-1B case. The subject matter of their comments, obviously, was the need for more capable immigration examiners, and their point, with which I entirely agree, was that no matter how well a lawyer prepares a case, and how much merit the case has, some immigration examiners either lack the ability to understand the case, have a mindset against approving it, or both.
This raises the question of what to do when encountering an RFE from an obviously incompetent or biased examiner. In this situation, my approach is, if at all possible, to shop for a different examiner. One way of doing this is, if the case was filed through the regular procedure, is to switch it to premium processing. My experience has been that premium processing examiners tend to be, on the average, more experienced and better trained, though this is not always the case by any means.
Another way, though one that may be harder to convince a client to use, is simply to refile the case, if H-1B visas are still available of if the quota limit does not apply. A couple of years ago, I had an H-1B case where the (premium processing) examiner was so clearly unreasonable that I should have taken my own advice. Instead, I chose to battle it out, as Mr. Sapochnik did with the clearly unreasonable examiner mentioned in his article, and my case was also initially denied.
I promptly refiled the case, even though this meant paying another premium filing fee, and the case, with the same facts and the same evidence, was approved the second time without too much difficulty. Greg Siskind and Jacob Sapochnik have done us all a great service by pointing out the problem of biased and incompetent immigration examiners. We all know they exist, and not only in H-1B cases. We should not let ourselves be intimidated by them.
Roger Algase is a graduate of Harvard College and Harvard Law School. He has been practicing business immigration law in New York City for more than 20 years.