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

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.

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.

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.

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).

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.