In an unexpected and deep movement, the US Citizens' Immigration Service (USCIS) has launched the H-1B request for evidence (RFE) and employment-based immigration petitions seeking petitioners to biometric data and detailed housing history.
This sudden, unprecedented procedural change has sparked alarms across the immigration law community, with lawyers warning that these new RFEs not only deviating from long-standing procedures, but also indicating a deeper change in the role and behavior of USCI under the Trump administration. The move comes shortly after the aggressive expansion of AI into high-risk areas of federal surveillance and enforcement, as reported by Biometric Update this week.
Traditionally, the RFE in the H-1B petition acts as a targeted regulatory function by requesting clarification or additional documentation relating to the applicant's eligibility, such as whether or not they qualify as a special profession.
However, recent USCIS RFEs have instead requested personal invasive information that does not explicitly affect these core arbitrary standards. Immigration attorneys say USCIS has requested a history of address for up to five years and documents of physical existence, such as lease agreements and utility bills. In other cases, the RFE appears to be looking for biometric identifiers such as fingerprints and face photographs, even though no biometric reservation notifications have been issued through the formal USCIS Application Support Center (ASC) process.
“This is very unusual because biometric authentication is not usually required for these case types,” Goel & Anderson's Vic Goel told Forbes. “The RFE also fails to explain the nature of the unfavourable information, leaving employers and lawyers in the dark. It appears that (DHS) of Homeland Security (DHS) could use AI tools to flag individuals based on private data, possibly from social media and other government databases.
What's even more surprising to immigration experts is that these demands often cite vague claims of “potentially unfavourable information” as justifications for RFE. However, they have not disclosed the nature of the information or how it relates to statutory eligibility criteria. For example, in one such RFE, the USCIS adjudicator writes: “We have encountered potentially harmful information related to the beneficiary. To continue processing your application or petition, you will need the beneficiary's most up-to-date address so that you can collect biometric data.” However, there is no unfavorable nature of information explained anywhere in the letter.
This kind of ambiguity is stricken at the heart of the due process. Under 8CFR §103.2(b)(16)(i), USCIS must disclose minor information to petitioners if it serves as the basis for an unfavorable decision. Failing to meet the agency's requirements led to USCIS questioning whether USCIS uses RFE for awards, not for adjudication, but rather as part of an enforcement priority that goes beyond USCIS's traditional interests scope.
Kevin Miner of Fragomen noted that these new RFEs focus solely on ambiguous unfavorable information and biometric collections, just as “don't ask substantive questions” about the qualifications and duties of beneficiaries. In his view, this is an unprecedented move away from the established practice of communicating through documentary exchange.
“It's very unusual for USCIS to use RFE in this way, and agents have not issued guidance on this new process,” Miner says.
The background to this procedural change is the Trump administration's vast approach to immigration surveillance. With Trump's executive order, Immigration Bureau has given it a wide range of discretion to identify, monitor and remove “unacceptable individuals,” including people with legitimate status, using digital tools, data integration systems, and AI.
Under the administration's new policy environment, the boundaries between benefits benefits and USCIS's role as the executive committee of Immigration and Customs Enforcement (ICE) appear to be eroding. When USCIS acts as a data collection proxy for ICE, it marks a critical and troublesome change in the functioning of an institution.
There is no transparency, making it difficult to measure the full scope of policy changes, as USCIS has not issued public notices or has not updated its policy manual to reflect changes to biometric recovery procedures in employment-based cases. Nor will there be any publications in the Federal Register to announce the creation of new rules. This stealth rollout prompted some immigration lawyers to submit requests for the Freedom of Information Act to clarify whether internal USCIS memos or inter-ministerial directives are behind the sudden expansion of the RFE.
Although not publicly confirmed in detail, there is evidence that USCIS has investigated automated tools for fraud detection and form processing. This could affect the RFE by flagging anomalies or inconsistencies that human adjudicators may otherwise deem immaterial. Critics worry that excessive reliance on automated analysis, especially in nuanced legal processes as opposed to immigration arbitration, leads to strict interpretations of eligibility standards and reduces the flexibility that immigration officials have traditionally used in assessing complex cases.
The consequences of the ambiguity of the new policy are serious. Without knowing the source or purpose of the new data request, the petitioner and his attorney will not be able to mount a meaningful response. In some cases, lawyers advise clients not to comply with RFE until USCIS fully explains the fundamentals of adverse information. Others chose to legally challenge the request, citing the agency's obligation to disclose all important evidence that could affect the award.
“USCIS openly boasts on social media about arresting people who come to the office for interviews and other normal, routine processes, so it's difficult to insist on unconsciously impose yourself on such behavior,” Goel says.
There is also growing concern that these RFEs could be partially driven by an automatic AI-powered flagging system. Goel said that DHS can use AI to detect anomalies from sources such as social media and commercial data brokers and to draw inferences from sources such as social data brokers without giving applicants the opportunity to disclose methodologies or to refute potentially flawed or biased information. If so, this would coincide with the broader trends across federal agencies to incorporate AI-enhanced surveillance technologies into immigration businesses, circumventing traditional surveillance mechanisms.
Biometric updates have reported that the federal sector has not embodied the convergence of AI, surveillance and civil liberty violations than DHS. A recent analysis of DHS' AI inventory reveals a vast, obscure digital arsenal hidden in the bureaucratic shadow. The report highlights nearly 200 previously unknown AI applications, spanning visa reviews, border enforcement, deportation logistics, and biometric identification.
These and the latest USCIS actions are consistent with a broader crackdown on legal immigration across the visa category. The Trump administration has already drawn criticism of deporting international students based on minor administrative issues and online political activities.
As of mid-April, more than 1,550 international students and recent alumni had changed or revoked their visa status as per reports from internal higher education. Employers and universities fear that the increased scrutiny of H-1B applicants is part of a greater effort to curb legal immigration under the guise of national security and fraud prevention.
The H-1B visa program is already restricted, with only 85,000 visas available each year, and tens of thousands of applicants being denied each year. According to the National American Policy Foundation, only 20% of new H-1B applications approved each year are approved, but it is estimated that “European teenagers are four times more likely to get seasonal visas to work in recreational parks than graduate students obtain H-1B status with AI.” Similarly, country-by-country restrictions on green cards bring decades of waiting time for highly skilled professionals from countries such as India and China.
New waves of biometric RFE can exacerbate these challenges by adding new barriers to already stiff systems. The opacity and irregularity of these requirements undermines predictability. This could move investment and talent recruitment elsewhere for foreign experts who have made employment decisions and are planning the future of the US, if companies view the company as arbitrarily deliberately punitive or functionally monitoring the US immigration process.
Meanwhile, the legal architecture that manages RFE is being tested. Under 8CFR §103.2(b)(8), USCIS is authorized to issue RFEs if initial evidence is insufficient. However, the rules require that RFEs be clearly and clearly stated which eligibility requirements are missing and the types of evidence that can be met. That standard appears to be undermined by new RFEs that lack specificity, instead bringing vague information to unfavourable information.
Historically, both the H-1B and I-140 employment-based immigration visa processes have been used to examine claims related to job eligibility, academic qualifications, wage levels and employer reliability. During the Trump administration's first term, RFEs rose dramatically, with the issue rate rising from 21.4% in 2016 to nearly 60% in 2018.
The spike was driven primarily by Trump's April 2017 executive order “Buy Americans and Hire Americans” and guidance from internal agencies that encouraged adjudicators to reject petitions that lack narrowly tailored evidence. That trend was reversed in January 2021 under the Biden administration with an executive order of 14005, attempting to restore a “fair and consistent” ruling.
In June 2021, USCIS updated the RFE/Notice of intent to reject RFE/NOID policies, reviving the 2013 memo, encouraging the 2013 memo to revive the 2013 memo, and encourages the issuance of an RFE or NOID rather than refusing to reverse the 2018 Trump era guidance that allows rejection without RFES in many circumstances.
However, today it appears that those benefits may be elucidated. Immigration lawyers will maintain a “wait and look” attitude and unclear whether the new RFE marked isolated deviations or the beginning of a broader campaign to reexamine immigrants through invasive data collection and ambiguous AI tools.
Miner warned that the requests were still too strong to draw solid conclusions, but agreed that there was a high stake. “These progress has not seen enough progress to understand the purpose of the request,” he said, “the lack of transparency is deeply concerned.”
Article Topics
Biometric Identifier | Biometric | Border Security | Data Collection | DHS | Immigration | US Government | uscis | Visa
