‘Adverse information’ claims by USCIS trigger alarm bells for attorneys and H-1B community

A new request from the US Citizenship and Immigration Services (USCIS) while processing H-1B visa applications (Form I-129) and also while processing applications for employment-linked green cards is perplexing attorneys and H-1B beneficiaries who are sponsored for the visa or green card.
The spate of inquiries from USCIS has gained momentum over last week. “The request for evidence (RFE) states: We have encountered potentially ‘adverse information’ related to the beneficiary. To continue processing your application or petition, we require an updated address for the beneficiary so that we may collect biometric data. Please submit the beneficiary’s current and updated residential address.”
This has prompted the American Immigration Lawyers Association (AILA) to issue a ‘Practice Alert’ for its members and also to reach out to USCIS. It has reminded the immigration agency that if it does have any adverse information, it is required to disclose the same and provide the petitioner with an opportunity to respond.
Kripa Upadhyay, immigration attorney at Buchalter, states “USCIS is breaking the law. Regulations require it to disclose any derogatory information being used as a basis for an adverse decision. These RFE’s provide no information or indication of what the ‘adverse information’ is.”
Cyrus D. Mehta, a New York based immigration attorney echoed the same and added, “It is bizarre and again one wonders whether this is an AI program that has gone rogue.”
Vincent W. Lau, managing partner at Clark Lau, who is the Vice-chair at AILA’s ‘USCIS Benefits and Policy Committee’ told TOI, “An official answer is still awaited from USCIS. Anecdotally from AILA member reports, we surmise that the ‘adverse’ information may include prior police activity and USCIS may be trying to use biometrics to verify the identity of the individual.”
“Some of the RFE’s seem to be because of prior infractions including working without authorization, but I also have some clients who have had this added to their RFE’s without any prior infractions,” said Upadhyay.
While biometrics are collected in several cases, such as citizenship, green cards, employment authorisation, or when applying for visas at consulates abroad, immigration attorneys are also puzzled as H-1B visa holders have not normally been required to submit to biometrics.
“I would not say therefore that it is illegal to request biometrics of H-1B beneficiaries but it has not been part of the petition process. If indeed this is a new trend, practitioners have not received any notice of this and therefore, with the uncertainty and unpredictability in the immigration space right now, it is unsettling. Practitioners and their clients are not sure whether there is more to the request. Is this just a simple request for biometrics or is there more behind the request? Should an individual be concerned and what can one expect when appearing to submit biometrics?, “ states Lau.
Meanwhile, in social media groups of H-1B holders, the fear is palpable: Will I be detained by ICE if I go for my biometric appointment? As of now, there are no answers.