Let our deep legal expertise and technology-enabled processes guide you in your U.S. immigration journey
Home > Blog > H-1B Visa
Last Updated On: April 8, 2024 | Published On: March 13, 2024
When someone receives an H-1B transfer RFE (Request for Evidence), they may feel overwhelmed and anxious. However, it’s important to understand that an H-1B visa transfer RFE is simply a request from USCIS for additional evidence before deciding whether to approve or deny the H-1B application. It’s crucial to complete the request thoroughly, and it’s recommended to seek professional help to ensure the best possible outcome.
An H-1B Transfer RFE is a formal request from the USCIS for additional information or documentation during the process of transferring an existing H-1B visa from one employer to another. When a foreign national with an H-1B visa decides to change jobs, the new employer must file an H-1B transfer petition. If USCIS needs more evidence to decide on the petition, it issues an RFE.
The RFE process for an H-1B visa may require additional documents and explanations. This includes verification of eligibility, job offer details, prevailing wage compliance, and proof of maintaining immigration status. Learn all about H-1B visa stamping in the U.S.
If you were selected in the 2024-25 H-1B visa lottery, contact VisaNation attorneys for filing your H-1B petition. Contact Us
If you were selected in the 2024-25 H-1B visa lottery, contact VisaNation attorneys for filing your H-1B petition.
Contact Us
There are a variety of RFE types. Some of them are as follows:
The H-1B RFE rate and approval percentages have seen significant changes over the last few years. In 2020, the RFE issuance rate was 28.8%, with an approval rate of 91.4%. However, by 2021, the RFE rate decreased to 16.2%, while the approval rate improved to 97.3%. This trend continued into 2022 and 2023, with even lower RFE rates of 9.6% and 9.8%, respectively, and remarkable approval rates of 98% and 97.2%. The approval rate for cases after receiving an RFE also improved, from 73.4% in 2020 to 86.5% in 2021, 85.5% in 2022, and 81.0% in 2023.
Comparatively, these figures show a substantial improvement over the past years. For instance, in FY 2019, the RFE rate was substantially higher at 40.2%, with an overall approval rate of only 84.8%. Earlier years, such as FY 2015 to FY 2018, witnessed RFE rates fluctuating between 20.8% and 38%. Notably, the approval rates in the most recent years, especially 2021 to 2023, have been the highest in over a decade.
The data chart referenced offers a comprehensive view of the recent trends in H-1B denials and approvals, illustrating the percentage of approvals overall, approvals after RFE, and the RFE issuance rates.
Fiscal Year
H-1B Approvals
RFE Issued %
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: Nonimmigrant Worker Petitions by Case Status and Request for Evidence
When the USCIS receives an H-1B application, it typically falls into one of three categories:
Learn about H-1B transfer before stamping.
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.
In most cases, the USCIS requests things like:
When the USCIS is unsure about a case, they typically:
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.
When an H-1B visa holder seeks to change employers, they must navigate the H-1B transfer process, a scenario often accompanied by an RFE from USCIS. An RFE is not a denial but a request for additional documentation to decide on your visa status. Understanding how to effectively respond to an H-1B Transfer RFE is crucial for a smooth transition to your new employer.
Below are key steps to guide you through this critical process.
USCIS decides if a petition needs an RFE. You can reduce the chance of an RFE by working together. An RFE can delay your petition and lead to its denial. Employers must show control over employee duties during the H-1B validity period.
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 employer still controls the employee’s off-site duties. Understanding this, petitioners can reduce the probability of receiving an RFE by doing the following:
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.
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.
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.
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.
Below you will find answers to the most commonly asked questions about this topic:
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.
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.
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.
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 case status via the USCIS Case Status Online webpage. With that, you can motivate the petitioning employer to respond on time.
At our firm, we specialize in employment-based immigration, and our H-1B attorneys have handled countless transfer RFEs in the past. Get in touch with us to learn about your options.
Tags: H-1B Transfer, Request for Evidence
