Request for Evidence, H-1B, Employer Information – Part II

In my last blog we discussed H-1B RFE’s in general. In this blog we will discuss a component of an H-1B Request for Additional Evidence (RFE) relating to requested information pertaining to the employer. The list of documents requested from the employer is typically extensive. A detailed RFE request can contain some or all of the following documents request: Contract Agreement, Statement of Work, In-house Project Description, Itinerary of Service, Form 941, Federal Quarterly Wage Report, State Quarterly Wage Reports, Federal Income Tax Returns, Payroll Summary for all employees, W-2 & W-3 Wage Tax Statements, Organizational Chart, List of H-1B Employees, tracking number for every case, date of birth and title of each H-1B employee, Photographs of Business Premise, Business Licenses, Article of Incorporation, Lease Agreement, Floor Plan, Telephone Directory Listing all employees, Evidence of appropriate zoning for the office, list of all H-1B filed, list of all H-1B’s withdrawn, and more…

So why USCIS will request such an exhaustive list of documents form Employers in an H-1B RFE? The short answer is frustration. Based on a study published last year by USCIS, approximately 20,000 petitions submitted yearly are either fraudulent or contain technical violations. Approximately 88% of these petitions go undetected. USCIS, in an attempt to improve its percentage, requests extensive document list from certain profiled petitions. USCIS will compare some of this information to the petition filed and will use public source material to look for discrepancies. Of course a poorly prepared petition with missing or inconsistent information will almost always trigger an RFE or a denial subsequently. USCIS utilizing Chi-Square test for statistical significance in its studies identified fraud indicators in H-1B petitions. The indicators are as follows:

• Petitioner company with less than 25 employees • With gross income of less than 10 million • Company in existence less than 10 years.
• Employee with bachelor degrees
• Petitions with positions of accounting, business analysts, Human Recourse, sales and advertising application.

So for example, a petition filed by a company of 20 employees, with gross income of $5 million, established in 2005 for an accounting position most likely will trigger an RFE. Based on the above, the sound advice is if your application fits the above profile or have at least two of the indicators, prepare for an RFE in advance. Care should be exercised to present accurate and precise information from the outset. Minor inconsistencies or discrepancies may cause a denial based on misrepresentation. Make sure you use the most accurate employer income, number of employees, etc., in your petition.

In many instances, neither the employer, the employee, nor the attorney can prevent an RFE. But collectively they can prevent a denial if the petition is prepared properly with accurate information and advanced planning. Finally, it is wise to begin accumulating the needed information for an RFE response ahead of time. No need to wait and then rush to accumulate the needed documents. This may also invite unnecessary errors.

In the next Blog we will discuss another component of an H-1B RFE that deals with the question of the relationship between the employer and the employee.