If you have received a Request for Evidence (RFE) from USCIS in respect of your H-1B petition, your next steps will be critical to the outcome of your application. An H1B RFE does not indicate an automatic denial of your petition. But you will need to act quickly to compile and submit the necessary documentation that will enable the adjudicator to make a determination.
An H1B RFE is a formal notice issued by USCIS when an H1B petition lacks sufficient documentation to make a final decision. Receiving an RFE introduces delay and increases the risk of denial if not addressed thoroughly. Employers and beneficiaries should treat the RFE response process seriously and meet all deadlines.
Key considerations include reviewing the RFE thoroughly, gathering strong supporting documents, and responding within the USCIS timeframe—usually 60 or 90 days. Legal guidance is often advisable to ensure the response aligns with current adjudication trends. Preparing an H1B petition thoroughly from the outset is the best way to reduce the chances of receiving an RFE and increase the likelihood of approval.
What is an H1B RFE?
RFEs are usually issued when the adjudicator is not able to determine an outcome on a petition using the information provided in the original application. They are looking for clarification and evidence through additional evidence that the requirements under the visa classification are being met.
It does not mean the petition has been denied, but it does pause processing until the petitioner provides the requested information. RFEs are common and can be triggered by issues such as unclear job duties, insufficient evidence that the role qualifies as a specialty occupation, questions about the employer-employee relationship, or missing academic or wage-level documentation.
RFEs can be issued in relation to applications for the initial H-1B visa, a transfer of status or an extension. Information requested can relate to the petitioning employee, the sponsoring employer or both.
Each RFE is tailored to the specific concerns in the original petition, and failure to respond with detailed, organized, and credible evidence can lead to rejection.
USCIS has the power to reject petitions outright, so an RFE is a more positive position, offering you the opportunity to show that you satisfy the requirements of the classification.
If you do not respond to the RFE on time with adequate supporting evidence, your petition will likely be rejected.
Why are H1B RFEs issued?
H1B RFEs can be issued in any circumstances where the adjudicating official considers further evidence is required to determine qualification under the route, ie that you have at least a bachelor’s degree (or equivalent) and a job offer from a US employer that requires your bachelor’s degree.
Common H1B RFE reasons include:
1. Speciality occupation eligibility
The role being recruited for must constitute a ‘speciality occupation‘. Determination of ‘speciality occupation’ however lies with the adjudicator and their discretion when evaluating the supporting documentation. This has resulted in considerable uncertainty for applicants when looking to evidence that the role meets the test.
Where USCIS are requesting further clarification of the role, a granular approach will be necessary, delving into the detail of the role, the employee duties and the specific knowledge required – technical, industry, organizational. While the role and the employee may be assumed to be critical within the organization – make no assumption that USCIS will give the benefit of the doubt. Extensive supporting information will be needed to remove any areas of doubt as to the specialist nature of the occupation.
2. Existing employer-employee relationship
An H-1B visa will only be granted where a qualifying relationship exists between the sponsoring employer and the employee.
Scenarios such as off-site working may also cause USCIS to seek clarification as to how the employer will maintain control over how and where the employee performs the role, as well as confirmation that the speciality occupation can indeed be performed from that offsite location.
3. Relevance of degree qualification
USCIS may take issue where the employee holds a degree – and in doing so satisfies the qualification requirement – but the qualification is in a field that is different or perceivably unrelated to the speciality occupation. In such instances, the H1B RFE may ask for clarification of how the role relates to the degree subject.
4. Issues with petitioning employer information
USCIS accesses information held in an online system known as Validation Instrument for Business Enterprises (VIBE), and cross-references this with the H-1B petition information. Where the information available to USCIS raises queries or discrepancies, an RFE may be used to provide up to date clarification on the issue. For example, if the employer has recently changed address.
How to respond to an H1B RFE
If you’ve received an H1B RFE, there are generally three options to consider:
- Full response – provide all of the requested evidence at the same time
- Partial response – provide some of the requested evidence, on the basis of which USCIS will make their decision
- Withdraw your application
Take professional advice on your circumstances, as the options are not necessarily straightforward. For example, depending on the facts of your case, a partial response may not automatically result in a denial. So if you are not able to locate or source a particular document, it may be better to submit those that you do have, on the basis that something is better than nothing.
When responding to a request for evidence, it will be critical to ensure you follow the directions given in the notice.
The first thing to make note of is the stated deadline. This is usually 30 to 90 days, but usually no longer than 12 weeks. Ensure the response has been submitted in good time to arrive within the given timeframe. Failure to respond within the deadline (or at all) will be taken by USCIS as indication that you have abandoned your petition and a denial will follow.
Answer the request in full if possible, avoid partial responses.
The RFE should typically list the documents or information being sought by the adjudicator. Where more complex issues are at play, you may find the RFE cites a specific point of immigration law for which you must provide additional evidence of your eligibility.
The documents will need to be submitted together, at the same time. Any follow up packages are not likely to be considered as part of the final adjudication.
Frequently requested documents include copies of birth certificates, marriage licenses, degrees and passports.
Other requested documents may however be more onerous to obtain, such as employer bank statements. It’s for this reason that you should start to build your response as soon as the RFE is received as you may need the full time allocation to compile all of the evidence.
The first page of your response should be the original RFE (blue paper). Use a cover letter to outline your response to the RFE and itemize the contents of your submission.
Double check the contents of your response, checking the format and making copies for your own records.
Finally – double check the mailing address as this may differ to addresses used for previous correspondence.
Need assistance?
Should you be facing an H1B RFE, take advice on your options. NNU Immigration specialize in all areas of US visas and nationality. If you have a query about the H1B visa, contact us.
H1B RFE FAQs
What is an H1B RFE?
An H1B Request for Evidence is a notice from USCIS asking for more information before deciding on a visa petition.
Does receiving an RFE mean my H1B will be denied?
An RFE means your case is under further review. If you respond correctly, approval is still possible.
How long do I have to respond to an H1B RFE?
USCIS usually gives either 60 or 90 days to submit a response. Deadlines are strict and must be followed.
Why did I get an RFE on my H1B petition?
Common reasons include unclear job duties, lack of evidence the role is a specialty occupation, or wage-level concerns.
Can I stay in the US while the RFE is pending?
Yes, if you have valid status or are within a grace period. However, no work can begin until approval is granted.
Can I work while my H1B petition is under RFE review?
Only if you are already in valid H1B status or eligible for cap-gap or portability provisions.
What happens if I ignore the RFE?
Failing to respond by the deadline will result in the denial of your H1B petition.
Can premium processing be used if I receive an RFE?
If you filed with premium processing, the clock pauses during the RFE period and resumes once a response is received.
Should I get legal help to respond to an RFE?
Legal support is strongly recommended to ensure your response meets USCIS standards and addresses all concerns.
How can I avoid getting an RFE in the first place?
Submit a well-prepared petition with clear evidence of specialty occupation, educational qualifications, and valid employer-employee relationship.
Glossary
| Term | Definition |
|---|---|
| H1B Visa | A nonimmigrant visa that allows US employers to temporarily hire foreign workers in specialty occupations. |
| RFE (Request for Evidence) | A notice from USCIS requesting additional information or documentation before making a decision on a petition. |
| USCIS | United States Citizenship and Immigration Services, the agency that processes immigration and visa applications. |
| Specialty Occupation | A job that requires theoretical and practical application of specialized knowledge and at least a bachelor’s degree or equivalent. |
| Employer-Employee Relationship | A requirement for H1B approval that the employer controls the work of the foreign national. |
| Premium Processing | A USCIS service that allows petitioners to pay for expedited processing of certain immigration forms, including H1B petitions. |
| Cap-Gap | A provision that allows F-1 students to remain in the US while awaiting an H1B decision if their status expires before October 1. |
| Wage Level | The prevailing wage rate assigned to a job, based on experience and education, used to assess H1B wage compliance. |
| Denial | The rejection of a visa petition by USCIS, usually due to insufficient evidence or ineligibility. |
| Evidence | Supporting documents provided to prove the claims made in an H1B petition or RFE response. |
Author
Founder & Principal Attorney Nita Nicole Upadhye is a recognized leader in the field of US business immigration law, (The Legal 500, Chambers & Partners, Who's Who Legal and AILA) and an experienced and trusted advisor to large multinational corporates through to SMEs. She provides strategic immigration advice and specialist application support to corporations and professionals, entrepreneurs, investors, artists, actors and athletes from across the globe to meet their US-bound talent mobility needs.
Nita is an active public speaker, thought leader, immigration commentator, and immigration policy contributor and regularly hosts training sessions for employers and HR professionals.