How to Avoid RFEs on Your H-1B Petition
A Request for Evidence (RFE) is when the U.S. Citizenship and Immigration Service (USCIS) needs more information before they can approve your petition for immigration benefits. Receiving an RFE after you have submitted your H-1B petition can be a very stressful and frustrating situation for everyone involved. While receiving an RFE can be a challenging adversity to overcome, your application can still be approved after providing the necessary documentation and strong explanations or anything USCIS may be concerned or uncertain about. If you have questions about the H-1B visa, the attorneys at The Law Firm of Shihab & Associates, Co., LPA have decades of combined experience in this area. Contact us for a consultation today.What are the Most Common Reasons for Receiving an RFE?
The great majority of H-1B RFEs fall into one or more of the categories described below. In preparing your documentation for your H-1B visa petition, it is very important to provide as much information as you can that is carefully and clearly presented to avoid these most common types of RFE deficiency areas. These are:
- The validity of the employer’s business enterprise information,
- Proof that the job is really a “specialty occupation,”
- Evidence of the employer’s need for the services of the foreign worker,
- Evidence of a direct employer-employee relationship,
- Evidence of the foreign worker’s qualifications, and
- Evidence of maintenance of the employee’s status, (for extensions.)
When the employer-petitioner submits the H-1B application for the employee-beneficiary, the USCIS will check the basic employer information using the VIBE system, (Validation Instrument for Business Enterprises.) This system will attempt to match the data you provide about the employer with commercially available data in its database. The VIBE system may not be always able to match or locate your business. This could be for a number of reasons: Your business is a new one, you have recently relocated, or there has been a change to the corporate structure. When this occurs, USCIS will send a RFE asking for more documentation to establish the identity of your business. This can be achieved by providing documentary evidence such as your Federal Tax ID Number (FEIN), articles of incorporation, building lease agreement, wage reports, tax returns, or bank statements. While cumbersome, this type of RFE can be easily satisfied if the employer-petitioner is a real, established U.S. business.2. Not Enough Proof that the Job is a “Specialty Occupation”
Another employer-based reason that you may receive an RFE, is because USCIS is insufficiently convinced that the job position is really a “specialty occupation” based on the information they have received. To qualify as a “specialty occupation,” the job must meet at least *one* of these requirements:
- The job requires at least a bachelor’s degree or its equivalent;
- The degree required must be common to the industry in similar positions at similar organizations; or, the position must be so complex or unique that it can only be performed by an individual with the degree;
- The employer normally requires the degree or its equivalent for the position; or
- The nature of the job duties are so specialized and complex that the knowledge required is usually associated with attainment of a bachelor’s or higher degree.
The USCIS will consult with the Department of Labor’s Occupational Outlook Handbook to determine whether the job offered can be classified as a specialty occupation. The adjudicating officer will look beyond the job title and will consider the totality of the facts for your petition, including: the nature of the employer-petitioner’s business, the employee-beneficiary’s education and work experience, industry standards and practices, the salary offered as compared to the typical salaries offered for the industry.
The RFE in this scenario will typically request a more detailed job description, documentation of the other employees at the company with at least a bachelor’s degree in the specific field, and any job postings used for the offered position.3. Inadequate Proof that Petitioner Needs the Specialty Services of the Beneficiary
This type of RFE may be issued, if your H-1B petition is filed by a specific type of business for a foreign worker in a specialty occupation not normally associated with that business type. For example, a petition filed by an IT consulting business for a specialty worker performing an in-house project. USCIS may think that the beneficiary will not really be performing tasks requiring specialty skills, or will immediately seek different employment once they arrive. The RFE will often seek documentation that a real need exists for the worker’s specialty skills.4. Deficiency in the Beneficiary’s Qualifications
To avoid an RFE based on inadequacies in the beneficiary-employee’s qualifications, you must clearly demonstrate that the worker possesses at least a bachelor’s degree from a U.S. institution in the specific field required by the position. And RFE may be issued, if the beneficiary’s education is in a related, but different field. In this case, you would need to provide an explanation of how the degree is related to the position.
If the foreign worker lacks a U.S. bachelor’s degree, documentation must be shown that the degree received in a foreign country is the equivalent of a U.S. bachelor’s degree. The RFE may also request that an education evaluation of the foreign degree be submitted that is prepared by an official who has authority to grant college-level credit at an accredited college or university.
In many cases, the beneficiary’s qualifications can be demonstrated through a combination of education and experience. Three years of “professional” experience may be substituted for one year of college-level training. Therefore, 12 years of professional experience would be required to equal a four-year bachelor’s degree. THE USCIS officer will evaluate based on your documentation whether your experience qualifies as “professional.” You can document your professional experience by providing “experience letters” from past employers that specifically state your experience and qualifications.5. Inadequate Proof of a Direct Employer-Employee Relationship
You may receive this kind of RFE, if the sponsored worker will work offsite at the location of a different business or organization than the petitioner-employer. This often is an issue with businesses that are consulting or staffing firms.
In this situation, the USCIS will examine the employer-employee relationship to determine whether the employer has a sufficient level of control over the employee to actually be considered an “employer.” The RFE will request evidence that demonstrates that the employer has the right to control the particulars of how the beneficiary performs their job duties. The employer can often satisfy this request by providing project-related documents that show a sufficient level of control at the client company’s offsite location. For further information on how USCIS defines the employer-employee relationship in the context of the H-1B visa, please see the Neufeld Memo.6. Lack of Evidence of Proper Maintenance of Status
For H-1B extensions or adjustments of status, your H-1B petition must clearly document that the beneficiary has properly maintained their status.
This can be shown through pay statements for H-1B extensions. For students in F-1 status, the RFE may request more documentation regarding your coursework, OPT or CPT employment, or your attendance in class.Contact Us
The lawyers at The Law Firm of Shihab & Associates have successfully completed thousands of H–1B petitions for large and small companies alike. We have the experience and proven track records that you require in order to employ the H–1B worker that your company needs. Contact one of our experienced attorneys today.