H-1B REQUESTS FOR EVIDENCE: The Basics

Requests for Evidence are issued by the USCIS service center where the petition was filed.  A Request for Evidence (RFE) may follow virtually any type of petition but the scope of this article will focus on requests for evidence on an I-129 Petition for an H-1B Nonimmigrant Worker.

First and foremost, the best way to avoid getting the dreaded RFE is to include enough documentation with the original H-1B petition to keep from getting one!  For this reason, we recommend working with an experienced immigration attorney.  Although the I-129 petition form seems simple enough to complete at first blush, working with an experienced immigration attorney will help to ensure not only that it is completed properly, but that the correct additional evidence is included, and is the best opportunity for getting an approval.  Most immigration attorneys agree, however, that there is no guarantee that even the most thorough I-129 petition will get approved without an RFE.    An RFE is issued if the USCIS feels that it has not received sufficient information to approve the case as it was originally filed.

Sample of an RFE cover page

Sample of an RFE cover page

An RFE may be issued on an I-129 that seeks a new H-1B classification filed in the quota, i.e. a new petition, seeking to grant a beneficiary H-1B status, as well as petitions that seek to:

  • Extend H-1B status
  • Transfer (change of employer)
  • Transfer and extend
  • Amend (changed project/position), and amend & extend

 

 

Time frames

Once a case is received by the USCIS, the service center will normally process the H-1B petition and come to a decision within approximately 5-8 months—which will result in an approval, a denial or an RFE.  If the petitioner elects to have the H-1B petition processed under premium processing, the time frame will be expedited and something will be issued within 15 calendar days.  Premium processing involves an additional fee but the fee will be refunded if the USCIS fails to act within the 15 day period.  There is always the danger with premium processing is that an RFE will be issued just to make the clock stop.  Once an RFE is issued, the clock stops until a response is sent back to USCIS.

Even though an RFE may not seem like good news, it is best to think of it as an additional opportunity to secure an approval.

Definitions

The H-1B is a non-immigrant visa that allows U.S. employers to temporarily employ foreign workers who have the equivalent of a US Bachelor’s degree to work in a “ specialty occupation”. An H-1B visa is granted for a period of up to 3 years, and is renewable once for an additional period of 3 years, for a total of 6 years.

A “specialty occupation” is defined as “an occupation that requires (a) theoretical and practical application of a body of highly specialized knowledge and (b) attainment of a bachelor’s or higher degree in the specific specialty (or its equivalent) as a minimum for entry into the occupation in the United States.” Immigration and Nationality Act (INA) §214(i)(1)(A)-(B).

Two Most Common H-1B RFE Issues

The two most common types of Requests for Evidence on H-1B’s, are (1) Is this job a Specialty Occupation? And (2) Does the employer have control over the employee?

From the above definition of specialty occupation, two major issues arise.  First, whether the position itself qualifies as a specialty occupation position (one which requires that type of specialized education/knowledge), and second, whether the beneficiary qualifies for the position, in other words, does his education prepare him to work in that type of occupation, or does he have some work experience or training to qualify him.

The next additional common H-1B RFE issues include whether the employer is the actual entity which has the right to direct and control the person’s work, and arises most often in the context of IT professionals who are placed at a client site for temporary assignments.  The USCIS seeks proof that the employer who pays them has the right to control and supervise their work, even though they are not working at the employer’s office.

In order to address these concerns, we have developed a list of possible documents and proofs to demonstrate the appropriate level of control.  Our goal is to work with the employer and employee in question, and prepare the documents which are needed in order to assure the USCIS that the position qualifies for an H-1B.

Disclaimer: The information provided here is not to be construed as legal advice nor presumed to be indefinitely up to date. This information is of a general nature and is not intended to apply to any specific or particular circumstance.

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