Updated: Oct 23, 2020
By Zachary Johnson, Ph.D. & Alexandra Beers Van Derlyke
o Describes what an RFE is, how often petitioners get them, and the five most common reasons they are issued (i).
o Top five reasons: 1. specialty occupation position, 2. employer-employee relationship, 3. availability of work off-site, 4. beneficiary qualifications, and 5. maintenance of status.
o Anticipated areas with more RFEs: vibe system mismatch and level-1 wage discrepancy
This paper is part of ProfVal’s H-1B series. Nothing in this article or any other article provided by ProfVal can be construed as legal advice. If a lawyer is quoted within the article, they are providing general comments about the immigration process; their comments cannot be taken as legal advice from them or the firm that they represent. Further, a quote by a lawyer does not indicate their agreement or disagreement with any content within this article. There is no affiliation between ProfVal and any other person or organization cited within this article.
Designed to make U.S. companies more competitive, the H-1B is an employment-based visa (ii) that enables US companies to temporarily employ qualified foreign workers in specialty occupations in areas including (in order of the number of petitions): computer-related applications; engineering, architecture, and surveying; administrative specializations; education; medicine and health; and many other occupational categories (iii)
Misunderstandings about H-1B workers (iv) and the 2017 executive order Buy American Hire American have contributed to an increase in H-1B Requests For Evidence (RFE) and denials. (v) In the first quarter of 2019, most H-1B visa cases received an RFE (vi), so it can be a good idea to anticipate how you will respond to one if you get it.
“We are seeing RFE cases at an unprecedented rate, so we discuss an RFE plan with our clients when we submit their initial petition. Even if you present a case that is drafted to deal with the issues, the USCIS can issue an RFE for any number of reasons.” ~ David Raft (Global Immigration Partners; Jan 2020)
What is an RFE?: An RFE is a Request For Evidence. True to its moniker, it means that the agent from the U.S. Citizenship and Immigration Service (USCIS) who reviewed your case is looking for more information from you before approving or denying your petition. As per the USCIS, an RFE or denial can be issued at an agent’s discretion “if all required initial evidence is not submitted with the benefit request or does not demonstrate eligibility” (vii).
If, with the assistance of competent legal counsel, you provide the evidence that the USCIS seeks, then you have a strong chance of having your petition approved. Of those petitions that received an RFE in the first quarter of 2019, approximately 60% went on to be approved.(viii) Next, we discuss the top 5 reasons (in order) along with some growing reasons that the USCIS issues RFEs. (ix)
#1 Reason for an RFE?
Specialty Occupation Requirements
#1. Speciality Occupation Position: The H-1B is a work-based visa for speciality occupations, which are positions that require no less than a bachelor’s degree within a specific specialized field as a minimal qualification criteria.
“The most common H-1B requests for evidence that we are seeing are requests from USCIS for additional evidence to demonstrate that the offered position is in fact a specialty occupation role and whether there will be sufficient specialty occupation work to cover the length of the requested validity period.” ~ Samuel Chow (Fragomen)
Prior to submitting your petition, it can be valuable to provide a discussion of the position in easy-to-understand terms based on duties consistent with the OOH along with typical educational requirements shown on O’NET to provide evidence of the typical qualifications of the position and why they relate to a bachelor’s degree.
“Often the immigration service is referencing the OOH as the primary source for whether a position is a specialty occupation, even though the Department of Labor states that this is not the purpose of the site.” ~ David Raft (Global Immigration Partners)
Your immigration attorney may also suggest to provide evidence that your position is a specialty occupation
position by: i) referencing an Expert Opinion Letter written by a professor or industry expert to explain why the duties of your position require no less than the equivalent of a bachelor’s degree; ii) identifying and showing similar positions offered by similarly-sized companies that also require a bachelor’s degree, and iii) including client letters indicating the need for a bachelor’s degree if you are working off-site.
“Increasingly, the USCIS may question not only the core duties of the position, but may look at them in a more granular level. This can be challenging, but you need to anticipate how and why the USCIS will question you on specialty occupation requirements.” ~ Ricky Palladino (Solow, Isbell & Palladino, LLC)
#2 Reason: Employer-Employee Relationship
2. Employer-Employee Relationship: If you or your employer did not demonstrate that your employer has the “right to control [your] work” or “the ability to hire, fire, or supervise” you (x), then the USCIS may question your employer-employee relationship.
“Immigration officers may look at the way services are offered by the company, and they may have questions based on whether the employer has the h-1b employee work on a 3rd party site. There can be confusion about that based on the profile of the employer.” ~ David Raft ( Global Immigration Partners)
You may need to, among other things, demonstrate: whether the petitioner is an owner of the business by showing incorporation records; show that the beneficiary is employed and governed by the organization; demonstrate an ability to fire the beneficiary; show contracts that demonstrate that the employer controls the actions of the beneficiary, even off-site; and/or other evidence as determined by your immigration attorney. (xi)
#3 Reason: Availability of Work (Off-site)
3. Availability of Work (Off-site): If you are planning to work for a client off-site, it can be helpful to include any contracts or statements of work that show that your role is a “specific and non-speculative” (xii)for the full duration of your time. If the USCIS questions whether you will be fully employed for the duration of your visa, they may issue a denial or RFE. As Mr. Samuel Chow noted in point 1, this is an increasingly common issue that is tied to specialty occupation status.
#4 Reason: Beneficiary Qualifications
4. Beneficiary Qualifications: Much as a position must require a bachelor’s degree as a minimum entry requirement, the beneficiary (i.e. you if you are the petitioner) must also show that your degree is equivalent to a U.S. bachelor’s degree in the appropriate field.
According to Samuel Chow (Fragomen), “[W]hile it may seem basic, the employer should ensure that the potential candidate's educational qualifications are in fact related to the offered position,” which he says the USCIS can interpret quite narrowly. Moreover, petitioners should be aware that “there may also be issues associated with the specific educational program from which a degree was earned, which could undermine one's eligibility.”
Sometimes, an Expert Opinion Letter from a professor or industry expert can provide evidence explaining why your degree is relevant for the role. Alternatively, if you earned your degree outside of the US, you may need an Academic Equivalency evaluation to demonstrate how or why your degree is equivalent to a US degree.
#5 Maintenance of Status
5. Maintenance of Status: “The petitioner did not establish that the beneficiary properly maintained their current status. This category is reflective of many different reasons that status may not have been maintained." (xiii) There are many reasons the USCIS may question your maintenance of status such as not meeting student employment requirements related to student (F-1) OPT or CPT requirements, an expired passport, admissibility requirements, a spouse’s immigration status, or a variety of other reasons. (xiv)
Expected Growth: Mismatched information in the VIBE System & Level 1 Wage RFE
(Anticipated growth) Mismatched Information in the VIBE system: To validate employers, the USCIS uses what is called the Validation Instrument for Business Enterprises (VIBE) Program (xv) to confirm information about the employer using publicly available information. If an inconsistency arises between the VIBE system and the petition, then you may receive a request for clarification. Sometimes, an inconsistency may arise if your employer moved locations.
(Anticipated growth) Level 1 Wage Discrepancy: Level-1 wage RFEs have been increasing in recent years, which
means that the USCIS is questioning whether the wage is consistent with Department of Labor guidelines. But what is a level-1 wage?
“It’s a basic entry-level job as defined by the labor requirements, responsibilities of the occupation, and educational criteria. An accountant for a tax preparation firm may be a level-1 wage. But if the position needed a graduate degree, it may be a level-2 wage. If it requires more, it could be a level-3 wage. USCIS never sought to deny H-1B petitions based on wage levels until recently. One of the things we suggest is to offer a level 2 or 3 pay level.” ~ Ricky Palladino (Solow, Isbell & Palladino, LLC)
>>Read in more depth: Level 1 Wage RFE (coming March 2020)
How do you respond to an RFE? If you receive an RFE, you should consult an immigration attorney so that she or he can help you to understand both the types of additional documentation that you need and also how to ensure that each of your documents fit into your case. Remember to read the RFE very carefully and to respond to each of the points that were brought up with the advice of your legal counsel.
“The playing field is not equal. The USCIS is fighting on every front now. It certainly appears that USCIS is actively trying to deny as many petitions as possible. You learn where to issue spot; responding to an RFE is knowing how to fight against it.” ~ Ricky Palladino (Solow, Isbell & Palladino, LLC)
“In responding to an RFE, it is important to respond in terms of each prong of the test. We provide an analysis along with evidence that corroborates how we meet that prong.” ~ David Raft ( Global Immigration Partners)
“An immigration attorney can leverage their knowledge and experience to help companies and their employees navigate these complex subtleties of the H-1B visa program, whether it is at the outset when filing the H-1B petition or at the RFE stage.” ~ Samuel Chow (Fragomen)
Neither ProfVal nor this paper provides legal advice. If you would like us to suggest a lawyer to work with, ProfVal would be happy to refer you to an immigration attorney that we respect.
ProfVal, LLC (profval.com) is a purpose-driven, professor-founded, and ethically-grounded provider of Expert Opinion Letters that can be used to support employment-based visas (H-1B, L1, EB, O). ProfVal is dedicated to helping clients through services built based on an architecture of research. ProfVal is dedicated to helping our communities through our giving site, profval.org.
Zachary Johnson, Ph.D. is the founder of ProfVal, LLC. ProfVal provides Expert Opinion Letters and Academic Equivalency Evaluations to support employment-based visa applications. He has over a decade of experience as a professor, academic researcher, academic program developer, and leader in academics. He has worked with members of the Fortune 500, startups, and nonprofits and has been quoted in US News and World Report, Innovate LI, News Day, Adelphi Business Review, and the AACSB.
Immigration Attorneys interviewed (listed alphabetically by last name)
Samuel Chow represents multinational corporate clients in a wide range of industries, such as information technology consulting, business and management consulting, financial services, healthcare, and entertainment and media. He is also experienced in complex removability issues. He is an associate with Fragomen
Ricky Palladino assists individuals in all areas of immigration law including: removal defense, family based immigration, asylum and refugee requests, naturalization, VAWA applications, U visas, F-1 student visas and all other temporary visas (R, O, P, etc). Mr. Palladino assists employers in all areas of immigration law as well, including: Labor Certifications, National Interest Waivers, H1b Visas, H2B & H2A visas, TN Visas. He is a partner with Solow, Isbell & Palladino, LLC
David Raft has twenty seven years of practical experience representing employers and individuals with respect to the complexities of the immigration law procedures. He is a Senior Managing Attorney with Global Immigration Partners)
vi - NFAP Policy Brief, April 2019 https://nfap.com/wp-content/uploads/2019/04/H-1B-Denial-Rates-Past-and-Present.NFAP-Policy-Brief.April-2019.pdf
vii - https://books.google.com/books?id=Rt9wDwAAQBAJ&lpg=PA31&ots=WMcUOKHeFY&dq=if%20all%20required%20initial%20evidence%20is%20not%20submitted%20with%20the%20benefit%20request%20or%20does%20not%20demonstrate%20eligibility&pg=PA31#v=onepage&q=if%20all%20required%20initial%20evidence%20is%20not%20submitted%20with%20the%20benefit%20request%20or%20does%20not%20demonstrate%20eligibility&f=false