Not all responses from the USCIS about your H-1B petition will be approvals, rejections, or denials. Sometimes, you will be sent an H-1B RFE to provide more information to the USCIS and help them make a decision on your case. It is important to recognize and RFE when you get one and to act accordingly and swiftly.
Before we get into why you might receive an H-1B RFE, we need to briefly cover the requirements tied to this popular visa. In order to qualify for an H-1B, you need to:
- Have at least a bachelor’s degree from a U.S. institution
- Have a job offer from a U.S. employer that requires your bachelor’s degree
Ostensibly, that’s it. These low requirements are what make the H-1B so popular, since some of the other nonimmigrant work visas require you to have extraordinary ability or invest a considerable amount of money.
However, there is more to the second requirement than meets the eye. Your position must be considered a specialty position, which, according to the USCIS, means that it must require a bachelor’s degree in order to perform. However, the USCIS usually favors occupations in the STEM categories (Science, Technology, Engineering, and Mathematics).
Additionally, there must be an existing employer-employee relationship between you and your sponsoring employer. This could cause problems for those that are self-employed, own a business, or were sponsored by a staffing agency.
What is an H-1B RFE?
An RFE, otherwise known as a Request for Evidence, is an inquiry by the USCIS in order to request additional proof necessary to make a decision pertaining to your H-1B case. You’ll find out if you have an outstanding RFE by checking the status of your H-1B using the online case status tool or receiving the request in the mail.
This information can be regarding the petitioner, beneficiary or both, since the USCIS must see sufficient proof of an employer-employee relationship. From the time you receive the RFE, you have 90 days to submit the appropriate documents and you should take great care to ensure that you are thorough in answering all inquiries. Otherwise, you run the risk of delaying your case further or including information that may harm the outcome. For that reason, it’s highly recommended to navigate the process with the help of a specialized immigration attorney.
Common Request for Evidence Reasons
The most common H-1B RFE reasons include:
- The USCIS uses a tool known as the Validation Instrument for Business Enterprises (VIBE). What VIBE does is use the information that’s commercially available to confirm information regarding the petitioning employer. Some discrepancies may arise if there is a recent change of address, change of structure or other mismatched information between the VIBE system and H-1B petition. Therefore, you may receive an RFE requesting information like the employer’s Federal Tax ID Number, wage reports, lease agreement, financial statements, etc.
- Determination of a specialty occupation- H-1B visas are granted to individuals who are qualified workers in a “specialty occupation”. In order to qualify as such, you will be required to adhere to one of the following requirements:
- The minimum requirement is typically a bachelor’s degree (or equivalent) for the position. The position may also be so complex that it requires a degree. Other requirements may also apply. While these regulations are pretty much set in stone, the approval of a “specialty occupation” typically comes down to the judgment of the adjudicating officer. They look past the surface and may request paperwork like the beneficiary’s work experience, detailed job description, industry-wide practices, proposed salary, etc.
- Petitions filed on behalf of businesses for professionals not typically associated in that field. This point is a bit challenging to explain but it does occur from time-to-time. Basically, an RFE may be requested if a small business is filing an H-1B petition for an alien who possesses skills not commonly associated in that field. For example, a petition for a financial planner filed by a construction business. The USCIS may not see a correlation between the two and be led to believe that the beneficiary will be placed in a position of less capacity and/or find other work when arriving. The major point for the employer to exhibit is that the beneficiary will be performing a role in a ‘specialty occupation’.
- Degree in a separate field of study- Cases exist where an individual may have a bachelor’s degree but it may not be in the same field as the proposed position. If that’s the case, the RFE will request an explanation detailing how the degree relates to the position. Likewise, if the worker does not have a bachelor’s degree from the U.S they may need to submit proof of the foreign degree equivalent. Proof of experience may also be required in the form of past employment letters or evaluations from official sources like a college or university.
- Questionable employer-employee relationship- As previously mentioned, the USCIS must see that an employer-employee relationship exists in order to approve an H-1B petition. The lines are often blurred when the sponsored worker is anticipated to be working off-site. When that’s the case, an RFE may request information that establishes the employer has the ability and right to control how, when and where the worker performs the job. They must also show the proper documents to prove that the specialty occupation can be performed at that off-site location. Additional documents may include the organizational chart (chain of command).
- Requests for an extension or change of status– If an H-1B petition is filed for an extension or change of status, sufficient documentation must be provided to demonstrate the worker has maintained their current status by submitting pay statements.
RFE Response: Best Practices
Keep these other considerations in mind when answering an RFE :
- Read the RFE fully and if you don’t understand something some of the jargon, ask your immigration attorney.
- Don’t make any rash decisions if you’ve received an RFE. It is not grounds to panic, but a tool used by the USCIS to learn more about your case.
- Do not answer the notice in parts. Answer the questions fully and completely the first time around since the USCIS doesn’t typically send a second one if you happen to have missed a point.
- Double check the mailing address and included documents.
- Submit your response before the deadline period ends. When you wait last minute you run the risk of missing the deadline date, and then you’ll likely receive a denial at which point you’ll have to file a motion to reopen the case. Of course, that’s not the ideal situation, but if you need help filing a motion to reopen the case, our attorneys can aid you with that as well.
H-1B RFE Trends and Rate
Every alteration of the H-1B—be it a transfer, an extension, or an entirely new petition—requires an employer to send an I-129 form to the USCIS. This opens the case up to an RFE each time the petition is filed. Now that the new presidential administration is more heavily scrutinizing all H-1B petitions under the “Buy American, Hire American” act, the H-1B RFE trend has increased.
Additionally, the H-1B denial rate has also increased. Based on numbers released annually by the USCIS, the approval rate is steadily declining. Over 80% of H-1B RFEs were approved in 2015, and since then, that percentage has been whittling down to the nearly 60% H-1B RFE approval rate for 2019.
According to this same data, the percentage of H-1B petitions that receive an RFE is increasing. In 2015, the RFE rate was between 10% and 30%. Now, in 2019, that rate has gone up to just over 60%.
Lastly, the percentage of H-1B petitions that are approved at all is declining. In 2015, the approval rate was in the high 90th percentile. This dropped to close to 75% in 2019.
RFE vs NOID
RFEs are sometimes issued simply because there was a missing document or an error with the information entered into the petition. A Notice of Intent to Deny (or NOID) is a much more serious situation. NOIDs are issued when the officer in charge of evaluating your petition is planning on denying your petition. Because there is a difference between rejection and denial (rejection often happens after a technical error such as omitted information or fee payments; denial usually takes place if you do not merit the visa), a NOID means that the officer does not think that you or your employer are qualified for the H-1B.
NOIDs are issued in order to avoid having petitioners re-file just to encounter the same fundamental problem. However, you can still save your case by presenting evidence or documentation that solves the issues raised in the NOID, much like you would for an RFE.
Consult with an H-1B Visa Lawyer
Because of the competition involved with the annual lottery, an H-1B visa is not easy to get. So, if you receive an H-1B RFE, it’s important to act quickly and decisively to save your petition. To understand your timeline and to make the appropriate response, the best course of action is to bring your RFE straight to your immigration attorney as soon as you get it.
Here at Immi-USA our team of H-1B attorneys has a long track record of helping individuals that have received RFEs. We’ll work alongside you to analyze and respond appropriately to your RFE in order to give you the best chance of approval.
To get in touch with one of our attorneys and to let us help you handle your H-1B RFE, you can fill out this consultation form and schedule your appointment today!