Court Orders USCIS to Issue an RFE to Certain Employment Based Applicants

Court Orders USCIS to Issue an RFE to Certain Employment Based Applicants

A federal judge ruled that U.S. Citizenship and Immigration Services (USCIS) should have sent a Request for Evidence (RFE) to an Indian executive beneficiary of an employment-based immigrant visa petition, in addition to the petitioning employer. The case involves a federal statute that allows a foreign national to switch jobs while their adjustment application remains pending. The agency was ordered to reopen the plaintiff’s application for adjustment of status.

Khedkar v. USCIS et al. was filed in the U.S. District Court for the District of Columbia. The plaintiff is Pravin Khedkar, a former manager at Deloitte Consulting LLP who later started working for IBM Corporation.

In his August 5, 2021, ruling, Judge Rudolph Contreras found that Khedkar had the right to be informed when USCIS determined that the employment-based immigrant visa petition Deloitte filed on his behalf was incomplete. The court determined that the agency should have sent an RFE to Khedkar and allowed him to appeal the closure of his case.

Under the Immigration and Nationality Act (INA), a foreign executive is permitted to change jobs while awaiting approval of their adjustment application without adverse impact, provided that the application to adjust status has been pending for 180 days. Under USCIS regulations, only Deloitte was entitled to notice from the agency about the status of Khedkar’s case.

By the time USCIS had asked Deloitte for additional evidence, Khedkar had already switched employment. When the company did not respond to the RFE, USCIS denied Khedkar’s application to adjust status.

Judge Contreras held that USCIS’ regulations were inconsistent because they required the agency to continue sending RFEs to the petitioning employer even after the employment-based immigrant visa petition beneficiary changed jobs. Additionally, only the former employer is allowed to appeal unfavorable decisions. Per the court’s decision, USCIS failed to reconcile its regulations with the governing statute.