A RFE, otherwise known as a Request for Evidence, is an inquiry by the USCIS in order to request additional proof necessary to make a decisions pertaining to your H1B case. You’ll find out if you have an outstanding RFE by checking the status of your H1B 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 H1B 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 H1B petition. Therefore, you may receive a RFE requesting information like the employer’s Federal Tax ID Number, wage reports, lease agreement, financial statements, etc.
- Determination of a specialty occupation- H1B 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. Click here to see what other requirements 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, a RFE may be requested if a small business is filing an H1B 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 employee-employee relationship exists in order to approve an H1B petition. The lines are often blurred when the sponsored worker is anticipated to be working off site. When that’s the case, a 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 H1B petition is filed for an extension or change of status, sufficient documentation must be provided to demonstrate the the worker has maintained their current status by submitting pay statements.
RFE Response–Best Practices
Keep these other considerations in mind when answering a 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 a 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.
Consult with an H1B Visa Lawyer
For any case, an RFE may include one or more of the aforementioned reasons. Due to the complex nature of these requests it’s best to consult an immigration attorney.
- Our immigration attorneys have extensive experience with H1B RFEs and gathering the necessary documents to submit. We handle cases for both petitioning employers as well as beneficiaries with the fewest delays possible.
- We provide you with regular updates regarding the status of your case and are committed to getting our clients approved the first time around.