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Last Updated On: April 8, 2024 | Published On: March 12, 2024
Receiving an RFE from USCIS is not a reason to panic or automatically assume that your H-1B petition is rejected. Sometimes USCIS just needs additional information so that they can make a decision on your case. Due to the sensitive nature, it is always advised to have a qualified immigration attorney review and submit the RFE response to USCIS to ensure the highest chances of approval.
An RFE, otherwise known as a Request for Evidence, is an inquiry by the USCIS to request additional proof necessary to make a decision pertaining to your H-1B case. You can 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.
Wondering the best way to avoid getting an H-1B RFE? 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.
The most common H-1B RFE reasons include:
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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.
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’.
Learn more about the H-1B application process.
Cases exist where an individual may have a bachelor’s degree, but it may not be in the same or closely related 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, university, or qualified expert.
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. In past years, USCIS has targeted sub-contracting job placement firms with RFEs.
A questionable employer-employee relationship RFE response needs to show that the petitioning employer maintains the right to hire and fire the employee, controls the manner and means of the work performed, pays the wages of the employee (and provides benefits, if applicable), responsible for performance reviews of the employee, etc.
If an H-1B petition is filed for an extension or change of status, sufficient documentation must be provided to demonstrate that the worker has maintained their current status by submitting pay statements or other documentation showing that they have been continuing to work under the terms of their nonimmigrant H-1B visa.
The H-1B Labor Condition Application (LCA) is an important part of your H-1B petition. If your employer skipped it, forgot to include it, or there is an issue in the one that was submitted, you will most likely receive an H-1B RFE from the USCIS. The main purpose of the LCA is to establish that the terms and conditions of the employment meet the H-1B requirements.
If your employer is going to place you on a specific assignment that requires being at an end-client location, or involves working remotely, your H-1B petition must include an itinerary with a detailed description of your job duties, the duration of the job, the job requirements, the salary, benefits, hours worked, and the information about who is going to supervise you. If any of these items are not clear in the petition submitted by your employer, the USCIS may send you RFE.
You may receive an H-1B RFE if you live in a place that is relatively far away from your office. Recently, the USCIS has been paying more attention to every detail in H-1B petitions. There have been some cases where people were asked to provide an explanation to justify why they lived so far from their place of work. The argument is that a beneficiary’s residential address and address of intended employment must be within a normal commuting area. This RFE can be resolved by providing a justifiable reason for living at such a distance.
You may receive an RFE concerning the AC21 and the six-year-limit if your employer failed to establish that you are eligible for AC21 benefits or eligible for an H-1B extension. This can happen if it appears that you have reached your six-year limit on your H-1B. The AC21 is the American Competitiveness Act in the Twenty-first Century Act of 2000. The Act allows H-1B employees to extend their stay beyond six years under two conditions:
In the above two scenarios, you are eligible for an extension beyond six years. However, the petition submitted by your employer must reflect at least one of those two instances to avoid receiving an RFE.
If you have had Optional Practical Training (OPT) or Curricular Practical Training (CPT) during your F-1 status, you may receive an RFE from the USCIS, especially if you had OPT or CPT more than once at each level of your education. For example, if you had CPT or OPT when doing your bachelor’s degree, you can only use it again when you get to the master’s level. If your petition reflects the use of any of these twice, you may get an H-1B RFE. For instance, you may get an RFE if you have two master’s degrees, and you used OPT/CPT during each of the master’s programs.
This type of RFE is more common for IT consulting companies. Many of these companies hire H-1B workers to work as developers, analysts, or engineers for clients’ in-house projects. These types of petitions often face hurdles as the USCIS will want the employer to prove that a legitimate H-1B employer-employee relationship exists. Suspicion sometimes arises if the H-1B employee will be stationed at the client’s worksite rather than the workplace of the petitioning employer. The USCIS will need additional documentation to be convinced that the arrangement isn’t just for a marginal project for the purpose of exploiting the H-1B system.
In addition to other general supporting evidence for your H-1B petition, your employer should provide documents that demonstrate that the in-house project is a specialty occupation and that there is a justifiable reason for the entire duration requested in the petition.
Some skilled professions (architecture, engineering, accounting) might require certain licenses which USCIS could want proof of. If the profession requires it, you should take the necessary steps to acquire the license.
Another RFE reason could be due to different information (i.e., address) in the VIBE (Validation Instrument for Business Enterprises) system used by USCIS. This is common when businesses are going through restructuring changes and the VIBE system hasn’t been updated.
Your first course of action anytime you receive correspondence from USCIS should be to share it with your immigration attorney. Keep these other considerations in mind:
Based on USCIS data, the approval with RFE rate was 81.0% in 2023. This number decreased the chances from the year prior (85.5% in FY 2022).
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. In recent years, the H-1B RFE trend has fluctuated due to different administrations in office.
Additionally, the H-1B denial rate has also fluctuated. The approval rate has been steadily increasing since 2018. Only about 60% of H-1B RFEs were approved in 2018, and since then, that percentage was steadily increasing to the approximately 86% H-1B RFE approval rate in 2021, but has been trending downward.
If it’s any indication of what’s to come, H-1B approval rates through Q3 of FY2023 were very high at 96.9% and the RFE rate was at a low 10.5%. This may change sharply depending on the upcoming 2024 U.S. elections.
Fiscal Year
H-1B Approvals
Completion with RFE %
Approved with RFE%
2023
97.2%
9.8%
81.0%
2022
98%
9.6%
85.5%
2021
97.3%
16.2%
86.5%
2020
91.4%
28.8%
73.4%
2019
84.8%
40.2%
65.4%
Source: USCIS, National Foundation for American Policy. Percentages are rounded off and analyzed from USCIS H-1B Employer Data Hub.
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.
No. Just the same way you are not allowed to sign an H-1B petition, you cannot respond to an H-1B RFE as an employee. The RFE is the responsibility of your petitioning employer. Though you can be made aware of the RFE by checking the status of your case online using the case receipt number of your petition.
According to USCIS, the RFE response times are as follows:
Any response to an RFE, NOID, NOIR, or NOIT received within 60 calendar days after the response due date set in the request or notice will be considered by USCIS before any action is taken. Any Form I-290B received up to 60 calendar days from the date of the decision will be considered by USCIS before it takes any action.
The probability will depend on many factors including the reasons we mentioned above as well as the completeness of your case in its entirety. We have seen with the Biden administration that there has been a sharp decline in the number of H1Bs that received Requests for Evidence compared to the Trump era. If you do receive one, don’t panic, you have 60 days to respond so do not miss the deadline. Be aware that you are also not immune from receiving an RFE if you have been in H-1B status for years and are extending it (with each I-129 filing you run the risk of receiving an RFE). Regardless, no one is 100% safeguarded from receiving an RFE, so it is highly advised to seek an immigration attorney to handle your case.
If you receive an H-1B RFE, it’s important to act quickly and decisively to save your petition. VisaNation Law Group's H-1B attorneys have a long track record of helping individuals that have received RFEs and giving them the best chance of approval.
Tags: H1B, Request for Evidence
