H-1B Transfer RFE

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 you receive an H-1B transfer RFE.

H-1B Transfer RFE Background

When the USCIS receives an H-1B application, it typically falls into one of three categories:

  1. File is complete, and the case is ready for approval
  2. File is incomplete, incorrect, or inconsistent and is rejected.
  3. File is complete, but does not meet qualifications and is denied.
  4. File is not yet approvable because it’s missing evidence/documentation or is unclear.
  5. 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 an 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

There 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 these 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 businesses 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.

Five Tips for Handling an H1B Transfer RFE

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.

  1. In the beginning stages of an H-1B case, consult a professional immigration attorney because including irrelevant information can increase your chances of receiving an 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.
  2. Upon receiving the H-1B transfer RFE, read it carefully and in-depth. Merely skimming the request is likely to lead to misunderstandings or 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.
  3. 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.
  4. Answer the RFE in its entirety. This type of request is not supposed to 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.
  5. 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 an RFE. Denial is a serious matter that 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.

Is There a Way to Avoid Receiving an H-1B Transfer RFE?

It is within the right of USCIS to decide whether a petition requires an RFE or not. However, you can significantly reduce the chances of receiving an RFE by doing your due diligence. For many reasons, each petitioner and beneficiary should work together to guide against RFE. This is because, apart from being a potential delay in your petition’s processing time, you only have one chance to respond to it, which could correspond to a higher possibility for the denial of the petition.

Based on the details of the latest USCIS June 2020 memorandum on H-1B, the agency seems to be focusing on subcontracting jobs and some other occupations that may not directly show a qualifying employer-employee relationship in line with H-1B regulations. 

One of the most significant elements is the requirement to demonstrate that the petitioning employer has the right to control the employee’s job duties. In other words, the employer must show that he or she is the one in position to hire, pay, fire, and supervise the employee’s work for the duration that the H-1B petition will remain valid. 

So, if the H-1B employee is going to be working on end client worksites, the petition should be detailed enough to demonstrate that the employee’s off-site duties are still controlled by the employer. Understanding this, petitioners can reduce the probability of receiving an RFE by doing the following:

Provide Enough Supporting Documents to Demonstrate a Qualifying Employer-Employee Relationship

You should ensure that the H-1B petition is submitted along with all the necessary supporting evidence. The H-1B LCA, a copy of the written contracts between the employer and the employee, and all other relevant H-1B transfer documents must be included in the initial petition. 

In the absence of a written contract, you should provide a summary of the terms of the oral agreements between the two of you. These are the crucial documents that will help the adjudicating officer determine whether or not there is a qualifying employer-employee relationship.

Provide Day-to-Day Assignments in Non-Speculative Petitions

In the case of non-speculative specialty occupation work, you should include the specific employee’s day-to-day assignment in the petition. While this is not part of the compulsory requirements, having it included can help boost your chances of approval and reduce the risk of receiving an RFE.

Establish a Bona Fide Job Offer

As an H-1B petitioning employer, the burden of proof is on you to establish that the job is available at the time of filing the petition and that you will employ the beneficiary in the specialty occupation. In fact, you must attest to this under penalty of perjury. If your attestation and supporting evidence meet this standard, then you shouldn’t have to expect an RFE. 

Understanding USCIS Stance Against Benching

The latest USCIS memorandum also clarifies that an approved H-1B petition can be revoked if the petitioner and/or beneficiary are found to have violated the conditions for which it was approved. And one of the specific factors for this is “benching” which is prohibited by law for two major reasons. The first reason is to prevent foreign workers from being subjected to unfair treatment by employers. The second reason is for the protection of job opportunities and wages of U.S. workers.

If you are approved for an H-1B petition, the failure to abide by the terms and conditions of the approved petition may be seen as “no longer employed in the capacity specified in the petition.” This can cause USCIS to issue a Notice of Intent to Deny (NOID) or Notice of Intent to Revoke (NOIR).

Some of the factors that could result in a NOID or NOIR include being placed in nonproductive status or training for an extended period. Staying in a nonproductive status for a long period of time may be deemed as not being in a specialty occupation any longer and could suggest there has been a material change to the terms of employment that may affect your H-1B eligibility.

However, there are a few exceptions to this rule. For instance, if an employee is in a nonproductive status at a period that is not subject to payment under the employer’s benefit plan and other statuses like the Americans with Disabilities Act or the Family and Medical Leave Act. In such cases, certain considerations may apply.

H-1B RFE Issuance Rate 2020

The H-1B RFE rate has been increasing in the past few years. In the first quarter of 2020, the figure was 35.3%. In the second quarter, there was a slight increase of 0.5 as it moved to 35.8%. Though these are relatively lower compared to FY 2019, which stood at 40.2%, in comparison with the recent years, the figures are still considerably high. In FY 2015, it was 22.3%, 20.8% in FY 2016, in 21.4% in FY 2017, and 38% in FY 2018. On a positive note, however, the H-1B approval rate showed an increase of almost 4% when compared to Q2 FY 2019.

The data chart below shows the recent rate of H-1B denial as well as approval and includes those initially approved and those approved after RFE, as well as those approved after RFE.

H-1B Denial Rates

Source: USCIS I-129 Petition Case Status Fiscal Year 2015 to 2020.

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.

What is the difference between an RFE and NOID?

Unlike a NOID (notice of intent to deny), an RFE is merely a request from the USCIS seeking further explanation/ clarification for your case–it’s not 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.

Can a beneficiary respond to an RFE?

An H-1B petition beneficiary (the employee) cannot directly respond to an RFE. It is the responsibility of the petitioner (the employer) to respond to the RFE. There is no provision for an H-1B worker to sign on the petition. When an RFE is issued, it is sent directly to the petitioner, not the employee. As an employee, however, you can be aware of the RFE by following your petition cases status via the USCIS Case Status Online webpage. With that, you can motivate the petitioning employer to respond on time.

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 our firm, 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 a VisaNation Law Group lawyer, you can fill out this contact form and schedule your consultation with our office today.

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