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 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:
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.
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.
Job itinerary issues
If your employer is going to place you on a specific assignment that requires being at an end-client location, your H-1B petition must include the 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 all these items are not clear in the petition submitted by your employer, the USCIS may send you RFE.
Living far away from your place of work
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.
AC21 and the six-year limit
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-years 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:
- If the H-1B employee has a pending labor certification for an employment-based green card that was filed over a year ago
- If both the labor certification and I-140 have been approved but there is no available green card currently for the H-1B employee. To avoid receiving an RFE due to this, your employer may include copies of the approved labor certifications and/or I-140 to prove your eligibility for an extension. He or she may also provide your trip itineraries as well as entry and exit stamps to recapture the time you spent outside the United States.
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.
F-1 OPT or CPT
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.
In-house projects at consulting companies
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 the documents that demonstrate that the in-house project is a specialty occupation and there is a justifiable reason for the entire duration requested in the petition.
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, 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.
Can a Beneficiary Respond Directly to 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.
What is the Probability That My H-1B Employer Will Receive an RFE?
You will most likely receive an RFE if any of the issues addressed above occurs in your petition. With the USCIS becoming more strict when processing H-1B petitions, there has been an increase in the rate of annual RFEs. As we mentioned above, in 2019, no less than 60% of the total petitions received an RFE.