An H1B RFE does not indicate an automatic denial of your petition. But you will need to act quickly and effectively to compile and submit documentation that will enable the adjudicator to determine in your favour.
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.
What is an RFE?
RFEs are usually dispatched where 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.
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.
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 U.S. employer that requires your bachelor’s degree.
Common H1B RFE reasons include:
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.
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.
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.
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.
Responding to an H1B RFE
The figures relating to H1B petitions can be discouraging for applicants. The ‘Hire American, Buy American’ policy has precipitated heightened adjudicator scrutiny of work visa applications as US authorities look to ascertain where US-resident workers could undertake the work in question.
USCIS figures show the percentage of H-1B petitions that are approved is in decline, to 75% in 2019 from over 95% in 2015. In 2015, the RFE rate for H-1B petitions was up to 30%. In 2019, that rate has gone up to just over 60%. USCIS figures also show that H-1B approval rates are in decline, from over 80% of H-1B RFEs in 2015 down to almost 60% H-1B RFE approval rate for 2019.
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 straight forward. 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.
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.
Should you be facing an H1B RFE, take advice on your options
This article does not constitute direct legal advice and is for informational purposes only.