Common Reasons For The H1-B Request For Evidence (RFE)

The process of immigrating on an H1-B visa involves numerous steps and paperwork. From initial online registration to submitting a complete H1-B petition, visa applicants must keep up with various elements. A key part of this process involves requesting evidence (RFE).

Imagine anxiously awaiting your H1-B visa application decision, only to get an H1-B RFE from the USCIS. Don’t be alarmed; this is a standard procedure. During the regular handling of visa applications, the USCIS issues RFEs to ask for more information when it can’t decide the case’s outcome based on the current information.

Are you among the H1-B applicants anxiously looking forward to a USCIS decision? What if you get an H1-B RFE instead of an approval? Relax! An H1-B RFE doesn’t signal a denial or rejection of your H1-B visa application. The USCIS needs more details or documents to process your visa, but you might wonder why you have been hit with an H1-B RFE.

This post has all the details you need. Keep reading to clear up any confusion and find the answers to your questions.

What is the H1-B visa?

First, let’s quickly review the main rules for the H1-B visa before we discuss why you might get an H1-B RFE.

The H1-B visa is super popular and lets people from other countries work as professionals in the US for a set amount of time. To get this visa, you need to meet a few key things:

• You need a bachelor’s, master’s, or something similar.
• You have got to get a job offer from a company in the US that needs someone with your skills for a specific job.
• You have got to show you are good at what you do.

Having a job offer from a US company you already work for would be best. If you don’t have enough proof to back up your application, the USCIS might ask you for more information, which could lead to an H1-B RFE.

Basic info on the H1-B RFE

The USCIS might occasionally send out an H1-B RFE before making a final decision on your H1-B application. Your employer will receive the H1-B RFE via postal mail. Nonetheless, you can use your case status tool to verify your H1-B status online and determine if you received an H1-B RFE.

If the USCIS doesn’t get enough information to approve your visa, it might reject your application. So, getting an H1-B RFE indicates that the USCIS is open to giving you another opportunity to provide the necessary documents for an H1-B visa. What steps should you take upon receiving an H1-B RFE? Your employer must reply to an H1-B RFE.

Regarding the H1-B visa, your employer must file Form I-129 for each application for a new visa, extension, or any changes to the visa status. Submitting Form I-129 initiates the case, which will likely trigger an H1-B RFE with every petition filed.

More details about the H1-B RFE

An H1-B RFE is when the USCIS asks for more proof to help them decide on your H-1-B case. You can determine if you are dealing with an H1-B RFE by checking your H1-B status online or getting a letter. This info could be about you, the person you are working for, or both because the USCIS needs to ensure a real employer-employee relationship.

Once you get the H1-B RFE, you have 60 – 90 days to send in the right documents, so make sure your answers are super detailed. If you are not, your case could take longer or give the USCIS reasons to deny your visa application. That is why getting a pro-immigration lawyer to help you through this is a good idea.

Common reasons for an H1-B RFE

Looking for tips on how to dodge an H1-B RFE? The USCIS has a tool called the Validation Instrument for Business Enterprises (VIBE) that checks the info from publicly available sources to ensure the information about the company sponsoring the visa is correct.

If there are any big changes like a new address, a change in the company’s structure, or any other info that doesn’t match up between the VIBE system and the H1-B petition, you might get an H1-B RFE asking for more details like the company’s Federal Tax ID Number, pay stubs, lease agreements, financial statements, and so on.

The popular reasons why you might get an H1-B RFE include:

• Deciding if the job is a specialty one.

H1-B visas are given to people who excel at jobs in a “specialty occupation.” To be considered for this, you usually need to meet some requirements. The basic requirement for the job is a bachelor’s degree (or something like it). Sometimes, the job is so complicated that you need a degree. There might be other requirements, too.

Even though these rules are pretty clear, calling a job a “specialty occupation” often depends on the person reviewing the application. They dig deeper and might ask for things like the person’s work history, a detailed job description, what is common in the industry, how much they will get paid, and more.

• When companies ask for visas for workers who aren’t usually in that field.

This part is a bit tricky to explain, but it happens sometimes. If a small company asks for an H1-B visa for someone not usually found in that field, it might get an H1-B RFE. For example, if a construction company asks for a visa for a financial planner.

The USCIS might not see how these two jobs are related and might think the person will end up in a job that is not as good or might not even find a job when they get there. The main thing the company needs to show is that the person will be doing a job that is considered a “specialty occupation.”

• Different areas of study for a degree.

Sometimes, someone might have a bachelor’s degree, but it is not in the same field or closely related to the job they are applying for. If this happens, the USCIS will ask for an explanation of how that degree connects to the job. Also, if the worker doesn’t have a bachelor’s degree from the US, they must prove that their foreign degree is equivalent. They might also have to prove their work experience, like past job letters or evaluations from schools or experts.

• Doubts about the boss-worker relationship.

The USCIS needs to be sure that there is a boss-worker relationship for an H1-B petition to be approved. It can get tricky when the worker is expected to work somewhere else. In those cases, the USCIS might ask for details to show that the boss has the power and right to control how, when, and where the worker does their job.

In the past, the USCIS has been suspicious of job placement firms working with sub-contractors, asking for more information to prove the boss still controls the workers and pays their salary.

• Changing or extending the H1-B status without proof of remaining in the same job.

If someone is asking for an H1-B petition to be extended or changed, they need to provide enough proof that they are still in the same job status. This means showing pay statements or other documents that prove they are still working under the terms of their visa.

• Problems with the LCA.

The LCA is a big deal for your H1-B petition. If your employer didn’t include it, forgot about it, or submitted it incorrectly, the USCIS will likely request more information. The main point of the LCA is to show that the job’s terms and conditions meet the H1-B rules.

• Issues with your job schedule.

If your job is going to take you to a specific place or if you will be working from home, your H1-B petition needs to have a detailed schedule of your job, how long it will last, what the job is, how much you will get paid, benefits, how many hours you will work, and who will be your boss. If your employer’s petition doesn’t clearly explain these things, the USCIS might ask for more information.

• Living too far from work.

If you live far from your office, you might get an H1-B RFE from the USCIS. Lately, the USCIS has been looking closely at H1-B petitions. Sometimes, they ask for an explanation if you live too far from your job. The idea is that you should live close enough to your job so you can commute easily. You can overcome this by giving a good reason for living so far away.

• Problems with the AC21 and the six-year limit.

If your employer didn’t show that you qualify for AC21 benefits or an H1-B extension, especially if you have hit your six-year limit on your H1-B, you might get an H1-B RFE. This usually happens if it looks like you have reached the six-year mark on your H1-B. The AC21 is a law from 2000 that lets H1-B workers stay longer than six years if certain conditions are met.

To avoid getting an H1-B RFE, your employer should include proof that you meet these conditions, like copies of approved labor certifications and I-140s, and details about your trips and entry/exit stamps to show the time you spent outside the US.

In these cases, you should be able to get an extension beyond six years, but your petition needs to show at least one of these conditions to avoid getting an H1-B RFE.

• OPT or CPT.

If you have had the chance to work in the US on an Optional Practical Training (OPT) or Curricular Practical Training (CPT) while you were studying here, you might get an H1-B RFE from the USCIS, especially if you have done OPT or CPT more than once during your studies.

For example, if you did CPT or OPT while getting your bachelor’s degree, you can only use that experience again at the master’s level. If your application shows that you have used OPT or CPT more than once, you could end up with an H1-B RFE. For instance, if you have two master’s degrees and used OPT/CPT for each one, you might get an H1-B RFE.

• Working on projects at consulting companies.

This kind of H1-B RFE is pretty common for IT consulting companies. Many of these companies bring in H1-B workers to help with projects for their clients. These kinds of applications often run into problems because the USCIS wants to ensure the company has a real employer-employee relationship.

Sometimes, it is doubtful if the H1-B worker will be working at the client’s place instead of the company’s. The USCIS will need more proof to be sure that the project isn’t just a small job to take advantage of the H1-B system. Besides other basic proof for your H1-B application, your employer needs to show documents that prove the in-house project is a specialized job and that there is a good reason for the whole time you’re asking for.

• Licensing criteria.

Some jobs, like architecture, engineering, and accounting, might require certain licenses that the USCIS could ask for proof of. If your job needs it, you should get the license. Another reason you might get an H1-B RFE is if your address is mixed up in USCIS’s VIBE (Validation Instrument for Business Enterprises) system. This usually happens when businesses change, and the VIBE system hasn’t been updated.

Get help!

If you get an H1-B RFE for any reason, you need to move fast and make smart decisions to keep your petition going. At Gehi and Associates, our immigration lawyers have a solid history of assisting people who have gotten an H1-B RFE and helping them get their desired results. Contact us today to get started!