Your H-1B visa request is pending. It seeks to bring foreign workers in to the United States to fill a specialty occupation in your organization. Now you have received an H-1B Request for Evidence (“RFE”). You are not sure what it means.
H-1B Request for Evidence: What Is It?
An RFE is issued to you by the United States Customs and Immigration Service (USCIS) when it needs more information pertaining to your H-1B case. The USCIS will send it to you in the mail and through the USCIS online case status tool.
An RFE is used by USCIS to obtain information regarding the H-1B visa petitioner, beneficiary or both, since the USCIS must see sufficient proof of an employer-employee relationship. An RFE simply means the USCIS needs more information about your petition. It is not a Notice of Intent to Deny.
If you receive an RFE, you have 30 days from the date you receive it (if you are in the United States, otherwise you will have a longer period of response time) to submit the responsive documents. You should make sure you meet the responsive deadlines. Also, you should be very thorough in answering the USCIS inquiries. If you fail to respond adequately to the RFE, you risk delaying or losing your case.
Before you respond to an RFE, you should hire experienced immigration counsel to represent you and help you prepare your responses. Expert counsel can help you make sure that your responses to an RFE provide the USCIS with the information it needs to act quickly and favorably on your petition.
Most Common Reasons for an RFE
RFEs are not unusual. In fact, they are becoming more and more common in the current immigration environment. The most common reasons USCIS will issue an RFE are:
1. The petitioner sent incomplete or incorrect documentation. You may simply need to provide additional documentation pertaining to your case. The RFE will specific the documentation the USCIS is seeking to conclude your petition. Your documents may need to be professionally translated into English.
2. USCIS needs to clear up discrepancies between information in the USCIS Validation Instrument for Business Enterprises (VIBE) system and an employer’s H-1B visa petition. The VIBE system uses commercially available information regarding the petitioning employer. Some discrepancies may arise due to a recent change of address, change of structure or other mismatched information between the VIBE system and H-1B visa petition. In such cases, USCIS may issue a RFE seeking the employer’s Federal Tax ID Number, wage reports, lease agreement, financial statements, and other basic information.
3. USCIS needs more information for the determination of a specialty occupation. H-1B visas are granted to individuals who are qualified workers in a “specialty occupation”. To qualify, the position must at least require a bachelor’s degree (or equivalent) for the position. The position may also be so complex that it requires a specialized degree. Other requirements may also apply. In short, the determination of a “specialty occupation” typically comes down to the judgment of the adjudicating officer. To support the decision, the RFE may seek information about the beneficiary’s work experience, industry-wide practices, proposed salary, and similar information.
4. Petition was filed on behalf of businesses for professional qualifications not typically associated with that occupation. Occasionally, an RFE may be requested if a small business is filing an H-1B visa petition for a foreign worker who possesses skills not commonly associated with the occupation or field. For example, a petition for a veterinarian filed by an accounting firm is very unusual and would likely generate an RFE. The USCIS may not see a correlation between the two and be led to believe that the beneficiary will be placed in a position of less capacity and/or find other work when arriving. In responding to the RFE, the accounting firm should be prepared to show that the beneficiary will be performing a role in a “specialty occupation” for the firm.
5. The foreign worker has a degree in a separate field of study. Sometimes an individual has degree but not in the same field as the proposed position. In such cases, the RFE will request an explanation detailing how the degree relates to the position. Likewise, if the foreign worker does not have a bachelor’s degree from a United States school, the foreign worker may need to submit proof of the foreign degree equivalent. The RFE may also seek proof of experience in the form of past employment letters or school grades and evaluations from an official source.
6. The petition raises questions about the employer-employee relationship. The USCIS must be satisfied that a proper employee-employee relationship exists before it will approve an H1B petition. Questions may arise when the sponsored worker will be working off site. In those cases, the RFE will likely seek information that establishes the employer has the ability and right to control over how, when, and where the worker performs the job. Responsive information should include appropriate documentation showing that the specialty occupation can be performed at that off-site location.
7. The petition seeks an extension or change of status. If an H-1B visa petition seeks to extend time or a change of status, sufficient documentation must show that the foreign worker has maintained his or her current status. The foreign worker will likely need to submit pay statements.
What Should You Do If You Have Received an RFE?
If you receive an RFE, your first step should be to consult with an experienced immigration attorney for assistance. You may already be represented. If so, work with your immigration attorney to develop a full and careful response to the RFE. Your attorney will help you understand the scope of the RFE, assemble responsive and pertinent information, and complete the process expeditiously.