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H-1B RFE (Request for Evidence) Response FAQ'S

RFE?

RFE stands for Request for Evidence and is issued by the USCIS prior to a final decision (approval or denial) of a petition or application. This FAQ is targeted to RFE’s sent in response to the filing of an H-1B petition, an increasingly common feature in 2019 under the Trump Administration.

 

What is the probability that any random H-1B petition will be selected for an RFE?

About 60% in 2019 in response to pressure from the Trump Administration’s “Buy American and Hire American” Executive Order.

 

What is the probability that the H-1B petition will be approved if selected for an RFE?

In 2019 slightly over 60%.

 

If issued an RFE, how long to respond?

Generally 90 days as stated on the actual RFE. Do not miss the deadline; it cannot be extended. Moreover, there is only “one bite at the apple” and the USCIS will make a decision on the documentation submitted in response, which must be comprehensive and address every issue raised in the RFE.

 

Can the beneficiary (the sponsored employee) respond directly to an RFE or is the cooperation of the petitioner (the employer) essential?

The H-1B petition is filed by the current or prospective employer; there is no provision for the employee to sign the H-1B petition. Therefore, the USCIS will address the RFE to the petitioner. However, the employee can be aware of an RFE by checking online USCIS case status with the H-1B case receipt number sent to the employer (or more likely the attorney-on-record) and motivate the employer into providing company documents in response, and if applicable supplement with his or her own documents (typically education or employment experience, or pertaining to maintenance of visa status).

 

Just my luck to be issued an RFE. Why?

You did not listen to your parents and majored in something other than STEM? In actuality, there is an increased likelihood of being issued an RFE in the I.T. profession. The USCIS issued a Memorandum in 2017 that reversed the assumption that computer related positions are specialty occupations. An excerpt: “The Occupational Outlook Handbook (OOH) is no longer sufficient evidence to prove a particular position in computer programming is a specialty occupation.” This directly targets not only Computer Programmers but related titles like Programmer Analysts and Computer Systems Analysts. Our immigration law firm has found anecdotal evidence that there has been an increase in “Software Developer” H-1B petitions after the Memo’s release and a concomitant decrease in “Programmer” positions, not without some justification.

 

What can I do to decrease the risk of an RFE?

The USCIS appears to be targeting “job shops” or sub-contracting job placement firms according to this Memo. As stated in the memorandum, the USCIS will evaluate whether the petitioner has the "right to control" the beneficiary's employment, such as when, where and how the beneficiary performs the job. The USCIS will seek to establish that there is still a valid employer-employee relationship if the H-1B employer (the company that files the H-1B petition, also known as the petitioner) contracts with other companies (end clients) and subcontracts the employee to the end client to fill their staffing needs.

The following actions negate the mandated employer-employee relationship: The H-1B worker reports primarily to a manager who is an employee of the end client company and receives work assignments from the manager in the end client company rather than the company that filed the H-1B petition and "employs" the H-1B worker. The H-1B employer does not control the work schedule, and there is no proprietary information, product or service under the purview of the petitioner that is used in the process. The end product is not related to the petitioner's business of I.T. consulting, and performance or compensation reviews are completed by the end client. The H-1B employer does not have the right of control and does not exercise control.

 

I have been in H-1B status for many years and never received an RFE. When time to extend status (either through the same employer or a different employer), am I inoculated from receiving an RFE?

No, each filing of an I-129 petition is as an opportunity for the USCIS to serve a RFE. This USCIS Memo issued under the Trump administration overturns a 2004 Memo that required the USCIS to defer to prior determinations of eligibility. It explicitily states that "In adjudicating petitions for immigration benefits, including nonimmigrant petition extensions, adjudicators must, in all cases, thoroughly review the petition and supporting evidence to determine eligibility for the benefit sought. The burden of proof in establishing eligibility is, at all times, on the petitioner."

Proactive steps such filing an H-1B petition six months prior to status expiration (generally the end of employee's I-94 validity date), or at least through USCIS premium processing well ahead of the status expiration date, can mitigate RFE anxiety. Advance preparation in anticipation of an RFE may allow adequate time for H-1B transfer option or change to another nonimmigrant status without interruption of employment or departure from the U.S.

 

Summary of reasons of why an RFE is issued?

  • Specialty Occupation (position must require a specific bachelor’s degree)
  • Employer-Employee Relationship (the H-1B employer must set the terms of employment and control the schedule)
  • Availability of Work (off-site work or in-house) for the requested duration of employment
  • Beneficiary Qualification (suitable degree or equivalent)
  • Maintenance of Status (generally shown through pay stubs)
  • LCA Corresponds to Petition (the Labor Condition Application certified by the Department of Labor and required to accompany the H-1B petition must accurately represent employment terms including job title, salary, and worksite location)
  • AC 21 and 6-Year Limit (generally a maximum of 6 years physically present in the U.S. in H-1B status unless PERM or I-140 immigrant petition is pending for one year, or I-140 is approved)
  • Itinerary (the itinerary accompanying the H-1B petition must include the dates and locations of services to be provided)
  • Filing Fee (depends on number of employees at the company, whether initial or first or second extension of H-1B petition through the same employer, cap-exempt or cap-subject employer, filed through premium processing, etc. In practice, the H-1B petition is likely to be “rejected” with incorrect filing fee rather than an RFE issued)
     

Can I get any help in answering an RFE?

Review it carefully with an experienced immigration attorney. With appropriate supporting documents and a strong legal argument, the H-1B petition is likely to be approved.

Your current legal representative should explain the RFE in plain language and jointly strategize a response. If unsatisfied with the level of service, seek independent counsel with an experienced immigration attorney who is a member of AILA. Our legal fee structure is transparent, reasonable and fair to all clients and we offer free initial case evaluation. Please scan/email the RFE (information shared with our law firm is confidential) to info@h1b1.com and we will without obligation review and respond promptly with a customized legal fee quote for representation.

Please contact our immigration law firm for additional discussion of this category and alternative options.

[Note: Please consult with an attorney specializing in Immigration & Nationality law for professional advice in specific situations.]


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