When individuals receive an H-1B transfer RFE in the mail, their first reaction is often to panic. While this may be a common response, an H-1B transfer RFE (Request for Evidence) is merely a request on behalf of the USCIS for additional proof before an H-1B approval or denial. With that being said, it should be completed in its entirety and checked by a professional to ensure the best possible outcome.
How to Transfer Your H-1B Status
There are two types of people who can benefit the most from this post: those that are hoping to avoid an H-1B transfer RFE and those that have already received one. For the first group of people, let’s go over how to transfer your status and minimize your chances of receiving an RFE.
For starters, there are a few things to know about H-1B transfers:
- You can have multiple employers file transfer petitions for you and you can work for multiple employers simultaneously.
- A transfer petition is not subject to the cap unless you are transferring from a cap-exempt employer to a cap-subject one. This means that your petition can be filed at any time and you can begin working as soon as your petition is approved.
- Transfer petitions benefit greatly from premium processing due to the fact that you are not limited to filing in April and working in October.
To transfer your H-1B status, you need to make sure that your new job still meets the requirements of a specialty position. If it does, then your new employer will need to get your Labor Condition Application (this is required for every H-1B employer) and file your I-129 petition along with the following H-1B fees:
- $460 basic filing fee
- $500 anti-fraud fee
- $750-$1,500 ACWIA fee (if applicable)
- $4,000 Public Law fee (if applicable)
You can also opt for premium processing, which expedites your H-1B transfer petition to just 15 calendar days. This service is not guaranteed to be available, but if it is, it can be a valuable tool if your receive an H-1B transfer RFE.
IMPORTANT UPDATE: Premium processing has been suspended for all cap-subject petitions for the 2019 fiscal year. The suspension will take place April 2, 2018 and continue until September 10, 2018. To read more about this suspension and how it affects your case, read our premium processing suspension update.
H-1B Transfer RFE Background
When the USCIS receives an H-1B application, it typically falls into one of three categories:
- File is complete and case is ready for approval
- File is incomplete, incorrect, or inconsistent and is rejected.
- File is complete, but does not meet qualifications and is denied.
- File is not yet approvable because it’s missing evidence/documentation or is unclear
- Evidence provided raises concerns or questions and petition not yet approvable
If your case falls in the fourth or fifth category, you’ll likely receive a RFE to clarify certain ambiguities. Some people get an RFE and get nervous. Instead, you can think of an RFE as a second chance to avoid receiving a rejection or denial.
Prior to 2008, the USCIS seldomly requested additional information in regards to an H-1B transfer, preferring instead to simply reject or deny petitions that lacked sufficient evidence. However in recent years they’ve become much more stringent in matters of this nature. H-1B transfer RFEs may ask for factual information from either the petitioner, beneficiary or both depending on the case. Today, the likelihood of receiving an RFE is about 1 in 3. Again, this should not be grounds to worry but sufficient reason to increase your planning efforts.
In most cases the USCIS requests things like:
- Proof of educational degrees and qualifications for the position
- Tangible evidence of past work experience
- Documentation from the employer showing the ability to pay the employee the proposed wage and that the wage matches or passes the prevailing wage.
- Evidence of the employer-employee relationship (remember that you cannot petition for yourself and your employer must have complete control over your employment).
When the USCIS is unsure about a case they typically:
- Conduct additional research internally through their channels
- Ask the petitioner or beneficiary for more documentation relating to their case
- Schedule an interview for the beneficiary or petitioner to attend
- Dig deeper into the case for clarification
Types of RFEs
The are a variety of RFE types. Some of them are as follows:
- Proof of an employer/employee relationship: Additional information may be necessary to prove that an authentic employer/employee relationship exists. That means that the employer should retain the right to fire (or hire) the employee at any point during the employment time frame. Furthermore, the employer should be withholding the proper taxes and employ the worker on a full-time basis. Examples of benefits that could serve as proof include health insurance, paid time off, 401k and other perks of this nature.
- Evaluation of education and degrees: An RFE may be issued to individuals who have degrees from outside of the U.S. The USCIS may take an in-depth look at the institution or university abroad to see how it compares to the U.S. degree requirements.
- Determination of a specialty occupation: In order for an H-1B visa to be approved, you must demonstrate qualification in a “specialty occupation”. However, to qualify as such, you must meet the minimum requirements, typically a bachelor’s degree or higher in a correlating field. For example, a Bachelor of Arts Degree may not be sufficient for a position as an accountant. Since this rulings are to some degree subjective, it’s best to consult an immigration attorney.
- Financial documents from new businesses: RFE’s of this kind are typically issued to business or companies that are in operation for fewer than 3 years or who have not filed H-1B’s in the past. The point of this RFE is to ensure that the business is in good terms with the IRS and up-to-date on their documents.
If the necessary planning and precautions are taken ahead of time it’s entirely possible to prevent an H-1B transfer RFE altogether. Take a look at these ten tips to avoid a request.
- In the beginning stages of an H-1B case, consult a professional immigration attorney because including irrelevant information can increase your chances of receiving a RFE in the first place. Also, you must respond to the RFE in the allotted time to have a chance at approval. Your attorney can help you determine whether or not premium processing is necessary to meet the deadline.
- Upon receiving the H-1B transfer RFE, read it carefully and in-depth. Merely skimming the request is likely to lead to misunderstandings or an incomplete response. For many new to the process, it may be difficult to understand the language used in the document. If that’s the case, don’t hesitate to contact your case’s legal representation.
- Respond to H-1B transfer RFE notices on time. It’s imperative to respond in a timely manner because there is no way to receive additional time as of this point. Consider the deadline set in stone to gather the appropriate paperwork and documents necessary to send out.
- Answer the RFE in its entirety. This type of request is not supposed to be answer part-by-part. The USCIS does not send a second H-1B transfer RFE if you neglect to answer a portion of their first request so make sure it’s complete the first time around. If not, expect a denial.
- Be concise in your answers. Answer the points in brief, concise sentences but still make it clear.
Other Methods for Responding
- We can’t overemphasize the benefits of working with an immigration lawyer to answer a RFE. A denial is a serious matter than is much harder to work around so rather than cutting corners the first time, enlist the help of a certified H-1B attorney.
- Another minor mistake that applicants make is not putting the colored paper (RFE) above all of the documentation relating to your answers. It’s a small detail but plays a significant role.
- Send your H-1B transfer RFE to the proper address.
- Address all answers in a polite and professional manner. You won’t get far by attacking the USCIS in your responses, which happens more often than you might think.
H-1B Transfer RFE Frequently Asked Questions
How long after I send my H-1B transfer RFE response will I receive a decision from USCIS?
Since the answer to this ranges from case to case, we cannot specify a time period. However, allow up to 60 days for a response. After that time, you can contact the National Customer Service Center to request service. Your immigration attorney should also be staying current with your case and any developments regarding your status.
How are an RFE and NOID different?
Unlike an NOID (notice of intent to deny), a RFE is merely a request from the USCIS seeking further explanation/ clarification for your case–it’s not an immediate dismissal.
How long do I have to file a response?
The letter you receive from the USCIS accompanying the RFE should state the amount of time you have to respond. In general it ranges anywhere from thirty to eighty-four days, although it may be more or less. As previously mentioned, be sure to submit a response before the deadline.
How Our H-1B Attorneys Can Help
Navigating the treacherous waters of immigration law to get a visa can be difficult enough on your own. When a wrench is thrown into your plan, like an RFE, you run the serious risk of accidentally sabotaging your own efforts. Just like you would hire an expert to handle your other investments, consider retaining an immigration attorney to protect your visa case.
At SGM Law Group, we specialize in employment-based immigration and our H-1B attorneys have handled countless transfer RFEs in the past. Just look at some of our H-1B RFE success stories. To get in touch with one of our experienced lawyers, you can fill out this contact form and schedule your consultation with our office today.