H1B RFE Explained: Steps to Ensure Approval

Navigating the complex world of H-1B visas can be challenging, especially when faced with a Request for Evidence (RFE). An H1B RFE from USCIS can be a major hurdle in your journey to secure or maintain your H-1B status. Understanding the reasons behind these requests and knowing how to respond effectively is crucial to ensuring approval of your H-1B petition.

In this comprehensive guide, you’ll learn about the common reasons for H1B RFEs, including issues related to specialty occupation, beneficiary qualifications, and employer-employee relationships. We’ll walk you through strategies to address these concerns, provide best practices for crafting a strong RFE response, and highlight the importance of working with an experienced immigration attorney. By the end, you’ll be better equipped to handle the H1B RFE process with confidence and increase your chances of a successful outcome.

What is an H1B RFE?

An H1B RFE, or Request for Evidence, is a formal request issued by the United States Citizenship and Immigration Services (USCIS) during the H-1B visa application process. When you receive an RFE, it means that USCIS requires additional information or documentation to determine your eligibility for the H-1B visa. It’s important to understand that an h1b request for initial evidence doesn’t signify a denial of your application; rather, it’s an opportunity to provide supplementary evidence to support your case.

Purpose of RFE

The primary purpose of an H1B RFE is to enable USCIS to conduct a more thorough review of your visa application. This process helps to ensure that you meet all the necessary criteria for the H-1B visa program. USCIS uses RFEs to:

Address missing or incomplete information in your initial application
Clarify discrepancies or inconsistencies in the submitted documents
Request additional evidence to establish your eligibility for the visa
Verify the authenticity of the information provided

By issuing an RFE, USCIS gives you the chance to strengthen your case and demonstrate that you qualify for the H-1B visa. This step is crucial in maintaining the integrity of the H-1B program and ensuring that only eligible candidates are granted visas.

Timeline for RFE Response

When you receive an H1B RFE, it’s crucial to act promptly. USCIS provides a specific timeframe for you to respond to the request. Here’s what you need to know about the RFE response timeline:

Response Deadline: The RFE notification will specify a deadline for your response. This deadline typically ranges from 30 to 90 days, but it will not exceed 12 weeks.
Processing Pause: Upon issuing an RFE, USCIS pauses the processing of your application. This pause remains in effect until they receive your response.
Response Submission: You must submit your RFE response within the specified timeframe. Failing to do so may result in USCIS evaluating your application based solely on the initially submitted information, which could lead to a denial.
Processing Resumption: Once USCIS receives your RFE response, they resume processing your application.
Decision Timeline: Without premium processing, USCIS typically takes up to 60 days from the date they receive your RFE response to make a decision on your application.
Premium Processing Option: If you need a faster decision, you can upgrade to premium processing by paying an additional fee. With this service, USCIS will process your RFE response within 15 days.
Follow-up: If you haven’t received a response 60 days after submitting your RFE response (without premium processing), you can contact the USCIS National Customer Service Center to request an update on your case status.

To ensure a smooth and timely response to your H1B RFE, it’s advisable to start gathering the required evidence as soon as you receive the request. This proactive approach will help you meet the deadline and provide a comprehensive response to USCIS.

For personalized assistance with your H-1B visa and RFE needs, you can reach out to EEE Of America. Their dedicated team of immigration attorneys is ready to help you navigate this critical process with confidence, ensuring that you submit a strong and timely response to your H1B RFE.

Common Reasons for H1B RFEs

When you receive an H1B Request for Evidence (RFE), it’s crucial to understand the common reasons behind it. USCIS issues RFEs for various concerns, and addressing them effectively is key to ensuring approval of your H-1B petition.

Let’s explore the main categories of H1B RFEs and how to approach them.

Specialty Occupation Issues

One of the most frequent reasons for H1B RFEs is the inability to establish that the position qualifies as a specialty occupation. USCIS scrutinizes whether the job truly requires a bachelor’s degree or higher in a specific field. To address this concern:

Provide detailed job descriptions highlighting the complex and specialized nature of the role.
Submit evidence of industry standards requiring a degree for similar positions.
Explain how the degree relates to the job duties and why it’s necessary for the position.

If USCIS questions how your skills pertain to the requesting business, be prepared to demonstrate the direct connection between your expertise and the company’s needs.

Beneficiary Qualification Concerns

Another common reason for RFEs is related to the beneficiary’s qualifications. USCIS may question whether you have the necessary education or experience for the specialty occupation. To address these concerns:

If you lack a bachelor’s degree in a specific field, consider obtaining a combined education and experience evaluation for a related field of study.
Provide detailed documentation of your work experience, including letters from previous employers detailing your job duties and skills.
If you have a three-year bachelor’s degree, you may need to rely on the “three-for-one” rule, where three years of specialized training or work experience can substitute for each missing year of college education.

Remember, USCIS expects extensive documentation of progressive training and work experience related to the H-1B position when making equivalency arguments.

Employer-Employee Relationship Questions

USCIS often issues RFEs when they can’t determine a valid employer-employee relationship. This is particularly common in cases involving third-party placements or when the beneficiary will work off-site.

To establish this relationship:

Submit copies of the employment contract and offer letter detailing the terms and conditions of employment.
Provide evidence that you, as the employer, will maintain the right to control the beneficiary’s work, including:
- Proof of direct supervision
- Details on how oversight will be maintained for off-site work
- Information on who provides tools and resources for the job
- Documentation of employee benefits

For long-term placements at third-party worksites, be prepared to show:

How do you provide the necessary tools for the project
The employee reports directly to you for assignments
Evidence of regular performance reviews

It’s important to note that sole proprietorships and certain third-party placements (job shops) may not qualify as valid employer-employee relationships under USCIS guidelines.

When responding to an H1B RFE, provide comprehensive documentation addressing each concern raised by USCIS. Remember, the burden of proof is on you to demonstrate eligibility for the H-1B visa.

For personalized assistance with your H-1B visa and RFE needs, contact EEE Of America. Our dedicated team of immigration attorneys is ready to help you navigate this critical process with confidence, ensuring you submit a strong and timely response to your H1B RFE.

Addressing Specialty Occupation RFEs

When faced with a Request for Evidence (RFE) regarding a specialty occupation, you need to provide compelling evidence to demonstrate that your position qualifies. Here are key strategies to address specialty occupation concerns effectively:

Providing detailed job descriptions

To strengthen your case, it’s crucial to offer a comprehensive breakdown of the position’s duties and responsibilities.

USCIS recommends that employers provide:

A detailed list of duties and roles
Specific responsibilities associated with the position
Educational and experience requirements necessary to perform the job

Your job description should establish a clear link between the work to be performed and the educational requirements for the position. This approach helps prevent misunderstandings about the position or its qualifiers.

To make a strong case, consider the following:

Break down each job duty into specific tasks
Explain how each task is complex enough to require a bachelor’s degree in a specific field
Avoid using generic terms and duties; instead, provide nuanced descriptions

Demonstrating industry standards

To prove that your position qualifies as a specialty occupation, you need to show that it meets one of the following criteria:

The job typically requires a bachelor’s or higher degree in a specific field
The degree requirement is common in the industry for similar positions
The employer normally requires a degree for the position
The nature of the duties is so specialized and complex that a bachelor’s degree is necessary

To demonstrate industry standards, consider the following approaches:

Provide job postings and announcements from similar employers
- Ensure the employers are similar to your company in terms of business type, industry, and size
- Verify that the positions are similar to the H-1B position you’re offering
- Confirm that the educational requirements match (bachelor’s degree or higher in a specific field)
Present evidence of your company’s hiring practices
- Include educational documents (diplomas, transcripts, evaluations for foreign degrees)
- Provide job descriptions, offer letters, and position announcements for similar roles
- Submit evidence of hire (W-2 forms, pay records, performance evaluations)

Caution: Avoid including job listings that may hurt your case, such as those with non-specific fields or those accepting degrees lower than a bachelor’s.

Explaining complexity of duties

To further strengthen your case, focus on explaining the complexity of the position’s duties:

Provide an extremely detailed breakdown of each job duty
Highlight specific tasks performed as part of each duty
Demonstrate how each task is so complex that it requires a bachelor’s degree in a specific field

If the H-1B beneficiary doesn’t have a bachelor’s degree in the specialty field, consider obtaining a combined education and experience evaluation for a related field of study. This can be done through:

Credential evaluation services
USCIS determination of degree equivalency
Proof of certification from a nationally accredited professional association
Recognized college-level equivalency examination results

Additionally, include a statement explaining how an unrelated degree relates to the job offered to prevent confusion.

Remember, the suitability of these arguments depends on each individual case. Adjust and tailor your response to fit your specific situation.

Responding to Beneficiary Qualification RFEs

When faced with a Request for Evidence (RFE) regarding beneficiary qualifications, you need to provide compelling evidence to demonstrate that you meet the requirements for the H-1B visa. Here are key strategies to address beneficiary qualification concerns effectively:

Proving degree equivalency

One of the primary challenges in responding to beneficiary qualification RFEs is establishing the equivalency of foreign degrees to U.S. educational standards. USCIS requires that you possess a relevant U.S. bachelor’s degree or its foreign equivalent. To address this:

Obtain a credential evaluation: Have your foreign degree evaluated by a qualified expert who can determine its U.S. equivalency. This evaluation should include:
- Description of your educational credentials
- Name of the institution that awarded the degree
- Year the degree was awarded
- A major area of study
- Opinion on whether the foreign degree is equivalent to a U.S. bachelor’s degree
Use the “three-for-one” rule: If you have a three-year bachelor’s degree, you can demonstrate equivalency by showing three years of specialized training or work experience for each year of missing college-level education. This approach is particularly useful for degrees from countries like the UK, India, or Australia.
Provide documentation from your educational institution: Submit an evaluation from an official university employee who has the authority to grant college-level credit for training and/or experience in the specialty.

Documenting relevant work experience

If your educational background doesn’t directly match the requirements of the specialty occupation, or if you’re relying on work experience to establish degree equivalency, you’ll need to provide extensive documentation of your relevant work experience:

Obtain detailed experience letters: Request letters from current and former employers that include:
- Specific job duties and responsibilities
- Duration of employment
- Skills and knowledge gained
- How the experience relates to the H-1B position
Highlight progressive responsibility: Demonstrate how your experience has become increasingly complex and specialized over time.
Show peer-level work: Provide evidence that you’ve worked alongside colleagues who have degrees in the field, indicating your comparable level of expertise.
Include supporting documents: Submit performance evaluations, project reports, or other materials that showcase your skills and accomplishments in the specialty occupation.

Obtaining expert opinion letters

Expert opinion letters can be a powerful tool in addressing beneficiary qualification RFEs. These letters provide an authoritative analysis of your qualifications and the specialized nature of your occupation. To effectively use expert opinion letters:

Choose the right expert: Select an expert who has:
- Expertise in your field
- Experience writing opinion letters for H-1B RFE responses
- A credible reputation within the industry
Ensure the letter includes:
- A qualifications assessment
- A specialty occupation analysis
- Information about industry standards and practices
- The author’s credentials and expertise
Collaborate with the expert: Provide them with accurate and complete information about your qualifications and the job requirements.
Use clear and concise language: Ensure the letter is easy for USCIS officers to understand and interpret.
Provide supporting documentation: Include any relevant certificates, awards, or publications that support the expert’s opinion.

Remember, responding to a beneficiary qualification RFE requires a comprehensive and well-documented approach. By carefully addressing each concern raised by USCIS and providing thorough evidence of your qualifications, you can significantly increase your chances of H-1B approval.

Employer-Employee Relationship RFE Strategies

When addressing an RFE concerning the employer-employee relationship, it’s crucial to demonstrate that you, as the petitioner, have the right to control the beneficiary’s employment. USCIS scrutinizes this relationship closely, especially in cases involving consulting companies, staffing agencies, or third-party work arrangements. To effectively respond to such RFEs, consider the following strategies:

Documenting the right to control

To establish a valid employer-employee relationship, you need to prove your right to control the beneficiary’s work. This includes demonstrating authority over when, where, and how the beneficiary performs their job duties. Key factors to address include:

Supervision: Show that you maintain direct supervision over the H-1B employee, whether on-site or off-site.
Work location: Clarify if the work and supervision occur at your job site or a different location.
Oversight methods: If off-site supervision is involved, explain how you maintain oversight (e.g., phone calls, visits, reports).
Tools and resources: Demonstrate that you provide the necessary tools and resources for the job.
Employee benefits: Outline the benefits you offer to the beneficiary.
Final product correlation: Explain how the end product relates to the H-1B employee’s duties and responsibilities.

Providing contracts and work orders

Submitting relevant contracts and work orders can significantly strengthen your case. These documents help USCIS evaluate the chain of agreements between you and the ultimate third-party worksite, if applicable. Include:

Employment agreements: Provide copies signed by both you and the beneficiary.
Client contracts: If the beneficiary will work at a client site, include contracts between your company and the client.
Work orders: Submit detailed work orders specifying the beneficiary’s duties and work location.
Itinerary of services: Include a comprehensive itinerary with names, dates, and addresses of work locations.

Explaining off-site work arrangements

If your H-1B employee will be working off-site, either temporarily or long-term, you must clearly explain these arrangements:

Temporary off-site work:
- Demonstrate how you maintain the right to control the employee’s work.
- Explain how the employee uses established company practices to perform tasks.
- Show that you cover travel expenses for work outside your geographic location.
- Clarify that the employee reports to a centralized office when not at client sites.
Long-term off-site employment:
- Prove that you provide the tools and resources necessary for the job.
- Show that the employee reports directly to you for assignments.
- Demonstrate that you conduct regular performance reviews.
Third-party worksite placement:
- Explain how your company’s expertise and resources are utilized at the client site.
- Demonstrate that you maintain control over the employee’s work, even when they’re physically located at a client’s premises.

Remember, the key is to present a comprehensive picture of your employer-employee relationship. Use a combination of documents, including organizational charts, performance review systems, and specific details about the beneficiary’s duties and responsibilities. By providing clear evidence of your right to control and ongoing involvement in the beneficiary’s work, you can effectively address USCIS’s concerns about the employer-employee relationship.

Best Practices for RFE Response

When you receive a Request for Evidence (RFE) for your H-1B petition, it’s crucial to respond effectively to increase your chances of approval. Here are some best practices to follow:

Reading the RFE carefully

Start by thoroughly reading the RFE to understand what USCIS is requesting. The notice will identify the eligibility requirements that have yet to be established and explain why the submitted evidence is insufficient. It will also specify any missing evidence required by applicable statutes, regulations, or form instructions.

Pay close attention to the deadline stated in the RFE. USCIS typically allows 30 to 90 days, but usually no longer than 12 weeks, for you to respond. When served by ordinary mail, you have a total of 87 days from the mailing date for USCIS to receive your response. Missing this deadline can result in your petition being considered abandoned and subsequently denied.

Gathering comprehensive evidence

Once you understand the RFE’s requirements, focus on collecting all necessary documents and information. USCIS may request various types of evidence, including:

Copies of birth certificates, marriage licenses, degrees, and passports
Employer bank statements
Expert opinion letters
Job advertisements
Letters from vendors and clients

Start compiling these documents immediately, as some may take time to obtain. Consider consulting an immigration attorney who can guide you through the document preparation process and ensure you have all the required evidence.

Organizing response effectively

When preparing your RFE response, follow these guidelines:

Answer the request in full, avoiding partial responses.
Submit all requested materials together at one time, along with the original RFE.
Include a brief in support of your response, presenting your case clearly and concisely.
Organize your documents logically, making it easy for the USCIS officer to review.
Double-check the address and deadline for submission to ensure timely delivery.

Remember, USCIS treats any partial response as a request for a final decision on the record. They won’t wait for a second response or issue another RFE, so it’s crucial to provide a comprehensive response the first time.

If you’re responding to complex issues or citations of specific immigration law points, consider seeking professional assistance. An experienced immigration attorney can help you understand your case and ensure that your response addresses all USCIS concerns effectively.

By following these best practices, you can significantly improve your chances of a successful outcome for your H-1B petition. Remember, the key is to provide a thorough, well-organized response that directly addresses all USCIS concerns and clearly demonstrates your eligibility for the H-1B visa.

Working with an Immigration Attorney

When navigating the complex world of H-1B visas and responding to Requests for Evidence (RFEs), working with an experienced immigration attorney can significantly improve your chances of success. While it’s not mandatory to hire legal representation, the benefits often outweigh the costs, especially for first-time sponsors or those facing complicated cases.

Benefits of legal assistance

An immigration attorney specializing in H-1B visas can provide invaluable support throughout the application process. They can:

Guide you through the overall process and timeline
Ensure your petition is complete and accurate
Help you gather all necessary supporting documents
Assist with the visa lottery selection and follow-up
Obtain the most current prevailing wage for your job and location
File the Labor Condition Application (LCA) through the Department of Labor’s iCERT system

By employing an attorney’s services, you can save time and energy and increase your chances of a successful application. Their expertise in immigration law and familiarity with the latest regulations can help you avoid common pitfalls and errors that might lead to delays or denials.

Attorney’s role in RFE response

When faced with an RFE, an experienced immigration lawyer can be crucial in crafting a strong response. They can:

Review the RFE carefully and explain its contents in plain language
Develop a strategic response to address USCIS concerns
Help gather additional evidence and documentation
Prepare a comprehensive and persuasive response package
Ensure timely submission of the RFE response

An attorney’s expertise can be particularly valuable when dealing with complex issues or citations of specific immigration law points. They can provide tailored advice and strategies to maximize your chances of approval.

Choosing the right attorney

When selecting an immigration attorney for your H-1B case, consider the following factors:

Experience and expertise in H-1B visa cases
Membership in professional organizations like AILA (American Immigration Lawyers Association)
Positive client reviews and testimonials
Clear and transparent communication
Success rate with H-1B visa applications
Ability to provide customized legal strategies

Look for an attorney who is admitted to and in good standing with a state bar. Ideally, they should have specific experience with H-1B visas, as expertise in other areas of immigration law may not translate directly to H-1B cases.

To evaluate potential attorneys, you can:

Ask for their success rate statistics
Check client testimonials and reviews
Inquire about their AILA membership and involvement
Schedule initial consultations to assess their expertise and communication style

Remember, the right attorney should not only have the necessary legal knowledge but also make you feel comfortable and confident in their ability to handle your case effectively.

For personalized assistance with your H-1B visa and RFE needs, contact EEE Of America. Our dedicated team of immigration attorneys is ready to help you navigate this critical process with confidence, ensuring you have the best possible chance of success in your H-1B journey.

Conclusion

Navigating the H-1B visa process, especially when faced with a Request for Evidence, can be a daunting task. By understanding the common reasons for RFEs and implementing effective strategies to address them, you can significantly boost your chances of approval. From proving specialty occupation qualifications to demonstrating a valid employer-employee relationship, each step requires careful attention to detail and comprehensive documentation.

To wrap up, responding to an H1B RFE demands a thorough approach and meticulous preparation. By following the best practices outlined in this guide and seeking professional help when needed, you can confidently tackle the challenges of the RFE process. For personalized assistance, contact EEE Of America to discuss your H-1B visa and RFE needs. Our dedicated team of immigration attorneys is ready to help you navigate this critical process with confidence.

FAQs

What are the approval rates for H-1B applications after receiving an RFE?
- In fiscal year 2023, the approval rate for H-1B cases that received an RFE was 79.8%, which shows a decrease from the previous year’s rate of 85.5%.
How long does it typically take to receive a decision from USCIS after submitting a response to an RFE?
- Once a response to an RFE has been submitted, USCIS may take up to 60 days to make a decision, although decisions can often be made quicker if there are no further issues or delays.
What options are available when responding to an H-1B RFE?
- When faced with an H-1B RFE, you can either provide a full response with all requested evidence, a partial response with some of the evidence or choose to withdraw your application altogether.
What does it mean to receive an RFE for an H-1B application, and how does it affect the processing time?
- Receiving an RFE means that additional information is required to determine eligibility for the H-1B visa. The processing time can extend by up to 60 days as USCIS reviews the additional documentation provided in the response.
Does receiving an RFE decrease the chances of H-1B approval?
- Receiving an RFE does not necessarily decrease the chances of approval; it indicates that USCIS needs more information to make a decision. The final decision heavily depends on the quality of the response and the completeness of the documentation provided.