H-1B RFE: Common Reasons, Solutions, and Best Practices for a Successful Petition

Overview

Navigating the H-1B visa application process can be complex, and receiving a Request for Evidence (RFE) from the U.S. Citizenship and Immigration Services (USCIS) adds a layer of challenge. Understanding the common reasons behind RFEs and how to address them effectively is crucial for a successful H-1B petition.

Common Reasons for H-1B RFEs

1. Specialty Occupation Challenges: USCIS may question whether the position qualifies as a specialty occupation requiring a bachelor’s degree or higher in a specific field. Providing a detailed job description and evidence that the role necessitates specialized knowledge can help address this concern.
2. Employer-Employee Relationship Documentation: Clarifying the nature of the relationship between the petitioner and beneficiary is essential, especially in cases involving third-party worksites. Evidence such as contracts, detailed job duties, and supervision plans can substantiate this relationship.
3. Beneficiary’s Qualifications: Discrepancies between the beneficiary’s educational background and the job requirements can trigger an RFE. Ensuring that the beneficiary’s degree aligns with the specialty occupation is vital.
4. Maintenance of Status: For beneficiaries changing status, USCIS may seek proof of maintained lawful status in the U.S. Providing documentation of previous status and employment can address this issue.
5. Availability of Work (In-House Projects): Petitions involving in-house projects must demonstrate the availability of sufficient specialty occupation work for the beneficiary. Detailed project plans and timelines can serve as evidence.
6. Third-Party Worksite Issues: When the beneficiary will work at a client site, USCIS may require evidence of the employer’s right to control the work. Contracts, itineraries, and end-client letters can be helpful in this context.
7. Prevailing Wage and Level: It is crucial to ensure that the wage level corresponds to the job duties and experience required. Discrepancies can lead to RFEs questioning the appropriateness of the wage level selected.
8. Licensure Requirements: Some positions may require state licensure. Providing proof of the beneficiary’s licensure or evidence that licensure is not necessary for the position can preempt related RFEs.
9. Company’s Financial Stability: USCIS may question the petitioner’s ability to pay the offered wage. Submitting financial statements, tax returns, and other relevant financial documents can demonstrate the company’s stability.
10. Inconsistencies in Documentation: Any discrepancies in the information provided can lead to an RFE. Thoroughly reviewing all documents for consistency before submission is essential.

Strategies to Address RFEs

• Timely and Comprehensive Responses: Adhere to the deadline specified in the RFE notice and provide all requested information in an organized manner.
• Consultation with Immigration Experts: Engaging with experienced immigration attorneys can provide valuable guidance tailored to the specific issues raised in the RFE.
• Detailed Documentation: Providing extensive evidence, including expert opinions, industry standards, and thorough job descriptions, can strengthen the response.

People Also Ask (PAA)

1. What is an H-1B RFE?
   • An H-1B RFE is a Request for Evidence issued by USCIS seeking additional information to decide on an H-1B visa petition.
2. Does receiving an RFE mean my H-1B petition will be denied?
   • No, an RFE indicates that USCIS requires more information. A well-prepared response can lead to petition approval.
3. How long do I have to respond to an H-1B RFE?
   • The response time is typically specified in the RFE notice, usually ranging from 30 to 90 days.
4. Can I continue working while my H-1B RFE is pending?
   • If you maintain valid status and have proper authorization, you may continue working unless otherwise directed by USCIS.
5. What are common reasons for an H-1B RFE?
   • Common reasons include issues related to specialty occupations, the employer-employee relationship, the beneficiary’s qualifications, and maintenance of status.
6. How can I avoid an H-1B RFE?
   • Submitting a thorough and well-documented initial petition and ensuring accurate and consistent information can help avoid an RFE.
7. What should I include in my RFE response?
   • Include all requested documents, a cover letter explaining the evidence, and any additional information that supports your case.
8. Can I appeal a denial after responding to an RFE?
   • Yes, depending on the case’s specifics, you can file a motion to reopen, reconsider, or appeal to the Administrative Appeals Office.
9. Is premium processing available for H-1B petitions with an RFE?
   • Premium processing is available and expedites the USCIS decision to 15 calendar days for an additional fee.
10. Who can help me respond to an H-1B RFE?
    • Consulting with an experienced immigration attorney can guide and assist in preparing a comprehensive RFE response.

Understanding the common triggers for H-1B RFEs and preparing a meticulous response can significantly enhance the likelihood of a favorable outcome in your H-1B petition process.