• Most Common H-1B RFE Issues

What Are The Most Common H-1B RFE Issues?

Navigating the H-1B work visa program can be a daunting task for both employers and foreign professionals.   USCIS’s adjudication standards change from time to time based on political and other factors making the H-1B program subject to varying degrees of scrutiny.   This scrutiny is most often exercised during the Request for Evidence (RFE) process during which USCIS seeks additional information to adjudicate a petition.  Understanding the most prevalent H-1B RFE issues is essential in preparing strong petitions that stand a higher chance of approval.  In this article, we highlight the common RFE issues, offering insights and resources to address them effectively.

Specialty Occupation

This is one of the most common H-1B petition RFE issues. It occurs when USCIS questions whether the job position for which the H-1B is being sought is sufficiently complex to require a bachelor’s degree or higher in a specific field(s) related to the job duties. USCIS does not like generic or vague job descriptions; some occupations (for example, “Computer Systems Analysts” have different education paths and the use of such SOC categories causes the government to seek clarifications on the position.

The key to successfully responding to a specialty occupation RFE is to make the case that the position requires a specific narrow field (or fields) of study and that you have degree in this field.

Wage Level

The Wage Level RFE most often questions whether the employer has appropriately selected the Wage Level in the H-1B petition’s LCA. Often it is whether a “Wage Level I” LCA position is truly an entry-level position; but sometimes the Wage Level RFE may seek a justification that a higher LCA wage level is appropriate given the job description.

The key in this type of an RFE issue is to strike the correct balance between (1) showing that this position’s complexity and requirements are consistent with the DOL Wage Level guidance (whether it is a Wage Level I for an entry-level position or a higher level) and (2) that the position, as described, would require someone who has a bachelor’s degree or higher in a specific field.

Employer-Employee Relationship

This type of an RFE is most often seen in H-1B petitions where the beneficiary will be placed at a third-party worksite location. USCIS may ask for further evidence to establish a bona fide employer-employee relationship — specifically, that the H-1B petitioner employer will retain the right to control the employee, including the ability to assign work, to hire/fire/pay the beneficiary.

The best approach is often to to document as extensively as possible the relationship between the employer and the end client and include client and any vendor letters, contracts, SOW/POs, etc. which will confirm, as much as possible, that the beneficiary will be an employee of and be controlled by the petitioner.

Important Note:  as a result of recent USCIS litigation and settlement, USCIS is currently not raising this RFE issue although they still expect an employer to be able to document that there is a legitimate employee-employer relationship in certain cases.

Availability of Work

Similar to the “employee-employer relationship” RFE issue for third-party client placements, USCIS may seek evidence to establish that there is sufficient duration of the end client placement and that there will be sufficient work for the beneficiary at the end client site. The best approach is often to to document as extensively as possible the relationship between the employer and the end client and include client and any vendor letters, contracts, SOW/POs, etc. which will confirm, as much as possible, that there is work for the beneficiary at the end client site. For in-house H-1B placements, USCIS may ask for credible evidence of internal projects to demonstrate that there is sufficient work for the beneficiary for the entire requested term. Project/product/service materials such as marketing, technical, sales, etc. may be needed.

Important Note:  as a result of recent USCIS litigation and settlement, USCIS is currently not requiring proof that end client placement will last for the entire requested H-1B term.   Similarly, USCIS is not allowed to limit the validity of an H-1B petition solely on the ground that the end client placement has not been documented for the entire requested H-1B term.

The Beneficiary's Education and Qualifications

Sometimes the beneficiary’s education or experience may not be sufficient or may not match the position description and requirements. USCIS expects to see that the beneficiary has, at a minimum, a four-year US bachelor’s degree equivalent in a field related to the position. RFEs on this topic often seek evidence of degree certificates, transcripts, prior employment experience letters (under the 3-for-1 rule) and third-party US equivalency evaluations.

Maintenance of Status

H-1B petitions seeking to extend, amend or change the beneficiary’s status must be accompanied by evidence that the beneficiary is in the US and maintaining valid status. This can include 2-3 recent pay stubs (or other evidence of employment) for H-1B extensions/amendments, or for other types of status, it may include I-20/EAD (for F-1), DS-2019 (for J-1) and many others. Unfortunately, sometimes the RFE does not seem to provide details on what USCIS deems to be “wrong” with the initial petition so careful analysis of the status situation is important to avoid a denial of the status component of a petition (which may also trigger unlawful presence).

Change of Worksite and (Lack of) Amendment Filing

We have seen USCIS actively look into and enforce the requirement to file an H-1B amendment before a worksite change takes place.   As a reminder, when there is a change in the worksite address (from the LCA), USCIS requires the petitioner to file an H-1B amendment.    The lack (or delay) of such filing sometimes causes USCIS to question whether or not the beneficiary has been in valid status.

Often this happens during amendments or extensions, but it may also happen during an H-1B transfer.    This kind of RFE raises a number of challenges because USCIS is alleging that the current H-1B status has not been properly maintained and this may impact the continued ability to work in the U.S. under the current H-1B petition.

Employer's Bona Fides/VIBE Verification

USCIS uses a system called VIBE (backend is Dun & Bradstreet) to verify key company details and sometimes, if there is some kind of mismatch, they issue an RFE. More info about VIBE. Responsive documents include incorporation documents, current lease and operations, evidence of ongoing business activities and related.

H-1B Cap Exempt/Research Employer

Employers who claim to be cap-exempt from the H-1B cap based on engaging in research are often questioned to the research nature of their activities.    To prove cap-exempt eligibility, employers must provide extensive documentation, such as IRS filings, research publications, and budget allocations dedicated to research. USCIS closely examines the organization’s commitment to research, ensuring that it is a core function, rather than a minor part of operations.

Attorney Assistance with Preparing RFE Response

We have been very deeply involved in handling (and helping prevent) H-1B RFEs and, having handled tens of thousands of cases, we feel that we have been able to understand what documents and information USCIS adjudicators expect  to see in order to issue an approval.    Our office will be happy to provide consultations or assistance with responding to H-1B RFEs.    If you would like to schedule a consultation with an attorney to discuss a specific case (but perhaps without engaging us to help with the RFE filing), we offer phone consultations.

We are also happy and available to assist with a more comprehensive RFE response representation.   Please feel free to complete this RFE inquiry form and we will be happy to provide thoughts and, if applicable, a quote for our legal assistance.

By | Last Updated: September 30th, 2024| Categories: Articles, H-1B, News, News Alert|

About the Author: Dimo Michailov

Dimo Michailov
Dimo has over 15 years of experience in US immigration including employment-based immigration benefits, corporate compliance and family based immigration. He represents corporate and individual clients in a wide range of cross-border immigration matters including mobility of key foreign executives and managers, specialized knowledge workers, and foreign nationals with extraordinary ability.

Related News and Articles

The Capitol Immigration Law Group has been serving the business community for over 15 years and is one of the most widely respected immigration law firms focused solely on U.S. employment-based immigration.   Disclaimer:  we make all efforts to provide timely and accurate information; however, the information in this article may become outdated or may not be applicable to a specific set of facts.  It is not to be construed as legal advice.