What does H1B RFE mean?
RFE means “Request for Evidence”, so H1B RFE means USCIS sends the applicant a request for evidence for H1B Case.
H1B RFE supplemental material is USCIS ‘summary of the H1B application or petitions: Additional material and evidence from the H1B applicant or petitions are required to determine whether or not to approve the H1B application.
H1B RFE is used to review H1B visa applications more carefully to determine whether the applicant is eligible for the benefits claimed.
Receiving H1B RFE does not mean that your H1B application has been denied, it simply means that there are documents or information that are missing. Thus, the adjudication officer sent out the notice so that eligibility can be established for the petition. In the following article, let’s take a look at what are the most common reasons for H1B RFE and how should you response H1B RFE.
Here are some common reasons for H1B RFE :
1. Mismatched information on VIBE system
The USCIS uses a tool known as the Validation Instrument for Business Enterprises(VIBE) to validate basic information regarding the petitioning employer. The change of company’s address or structure may result in the occurrence of discrepancies between the VIBE system and H1B petition. Therefore, you may receive a H1B RFE requesting petitioner’s information such as employer’s federal tax id number, wage reports, etc.
2. Specialty Occupation + Level 1 wage
What is Level 1 Wage: For each occupation, there are 4 levels of wages commensurate with employees’
3. Level of supervision( Ranging from Level 1 (entry level) to Level 4 (fully competent))
The Immigration and Nationality Act (INA) requires the wages offered to a foreign worker must be the prevailing wage rate for the occupational classification in the area of employment so that hiring a foreign worker would not adversely affect the wages and working conditions of U.S. workers comparably employed.
The specialty occupation may be questioned by USCIS when a petition is only qualified for level 1 (entry level) wage. Because an entry level position “would likely contradict a claim that the proffered position is particularly complex, specialized, or unique compared to other positions within the same occupation.” In brief, the designation that a position is level 1 may disqualify the professionalism of the H1B applicants and the specialism of the position. This is a very common reason for H1B RFE on many pending cases.
3. Beneficiary Qualifications
Position that qualify for an H1B visa must have a minimum of a bachelor’s degree, and the applicants must have a relevant degree for the position. For the applicants who obtained their degree overseas, a H1B RFE may request proof of a foreign degree equivalent. Official school documents are necessary to provide the proof needed.
A H1B RFE may also be sent out of the irrelevance of petition’s occupation and their field of study. In this case, petitions will have to explain how their degree is closely related to their job. Letters and references from previous employers may be helpful to prove applicant’s qualification for the position.
4. Employer-Employee Relationship
Employer-employee relationship is evaluated based on three main factors:
1. Whether the H1B employer directly supervises the H1B applicants;
2. Whether this supervision is performed on site or off site;
3. Whether the H1B employer has control of the H1B employee.
It is hard to establish a validate employer-employee relationship when the work is performed off-site. Therefore, a H1B RFE is highly possible to be received by H1B applicant who works off-site.
5. Maintenance of Status
An extension of status or change of status must be documented properly to maintain H1B employer’s current status. Sufficient documentation must be provided to demonstrate that the worker has maintained their current status by submitting pay statements, employment history. For F-1 students, a H1B RFE may request class attendance or coursework history to prove that the applicants were actually in school before they applied H1B.
6. LCA issues
The H-1B Labor Condition Application(LCA) is an important part of your H-1B petition. It’s very crucial for your employer to include it in your petitions because if you leave this issue unresolved, it will increase the chance of receiving an H-1B RFE front from USCIS. This LCA is for USCIS to ensure that applicants are all meeting the H-1B requirements.
7.Job itinerary issues
Your H1-B itinerary is also an important element that you need to include in your petition. If your job requires you to relocate or have multiple itinerary changes, your H1-B petition must include the detailed description of your job responsibilities, the duration of the jobs and the requirements and itinerary. It will increase the chance of receiving an H1B RFE if you don’t have all these information included.
8.Living far away from your workplace
USCIS has been investigating more detailed information about the petitions including whether you are living far away from your workplace. However, this type of H1B RFE have been given less often due to the Covid pandemic which makes working from home a lot more common.
9.AC21 and the six-year limit
It is likely that you receive an RFE due to the AC21 and six-year-limit if your employer did not establish that you meet the requirements of AC21 benefits or H-1B extension. This may happen if you have reached your six-year limit on your H-1B and AC21 is an act that allows your H-1B employees to extend their stay beyond 6 years under the following two conditions:
- If the H-1B employee has a pending labor certification for an employment-based green card that was filed over a year ago
- If both the labor certification and I-140 have been approved but there is no available green card currently for the H-1B employee. To avoid receiving an RFE due to this, your employer may include copies of the approved labor certifications and/or I-140 to prove your eligibility for an extension. He or she may also provide your trip itineraries as well as entry and exit stamps to recapture the time you spent outside the United States.
If you meet the above 2 scenarios, you are eligible for the extension beyond 6 years.
H1B RFE under Donald Trump
The fiscal year of 2018 saw a dramatic increase of RFEs compared to the same time frame of last year. The increase of RFE is result from a major change made by USCIS in H1B assessing process titled as “Guidance memo on H1B computer related positions”. The memo states that “The Occupational Outlook Handbook (OOH) is no longer sufficient evidence to prove a particular position in computer programming is a specialty occupation”, which targeted directly at the computer related jobs like Programmer Analysts, Computer Systems Analysts, and Computer Programmers.
Additionally, evidence shows that a wide range of occupations have been affected by this new rule, including entry level business related jobs, as well as some engineer jobs. RFEs challenge whether or not the duties of the position are sufficiently complex for the role to qualify as an H1B occupation, or which challenge the use of lower prevailing wage levels in support of the filing.
Another new rule that was implemented by USCIS has terminated agencies and ‘bodyshops’ who sub-contract their H1B employees out on project for their clients. The new rule specified a valid employer-employee relationship which significantly restricted agencies from sponsoring H1B workers and filling H1B visas.
There’s a widespread belief that the new rules regarding H1B are guided by president Trump’s “buy American, hire American” executive order, even though no changes have been made on legislative level.
What can I do after receiving H1B RFE ?
Here are some steps to follow after you receive a H1B RFE:
- Read the RFE fully to ensure you understand it completely and have a idea of what will be needed.
- Stay calm. RFE is not equal to a denial on your application. RFE is a tool used by USCIS to learn more about H1B applicants’ cases. Don’t make rush decisions.
- Prepare for all the documents that may convince the USCIS. It might include evidences such as expert opinion letters, job advertisement, letters from vendors and clients.
- Strongly consider consulting an immigration attorney who can help you to understand your case and guide you through the document preparation. Having all the possible documents in hand is a determination of your case. Find a professional to make sure you have what are needed and no errors were made.
- Double check the address and deadline for RFE submit. Make sure your documents are delivered on time.
Chances of receiving an H1B RFE
According to the statistic provided from the USCIS, the chances of an H-1B RFE was 35.8% in the second quarter of FY 2020. The The chances of H-1B approval rate after getting an H-1B RFE were 68.2%, which is nearly a 10% increase from last year.
H1B RFE trends and rate
Every applicant is very concerned about the H-1B RFE trends and rate because this can tell us a lot about the situations. Also the recent political movement is heavily affecting the H-1B policy and petitions under the “Buy American, Hire American” act.
Also we have seen the increase of H1-B RFE rate and H-1B denial rate. Based on the statistics released by USCIS. We see a decline of approval rate. In 2015, the approval rate was up to 90 percentage but in 2019, it dropped to 60%
So we don’t have an optimistic number here for the applicant to look at right now but situations have always been changing and unpredictable. However, new policy takes time to be effective.
H-1B RFE may include more than one of the aforementioned reasons. Due to the complex nature of these requests, it would be best to consult an immigration attorney. GoH1B have developed different RFE programs vary by occupations to accommodate our clients’ needs. With over 10 years of experience, we have successfully analyzed the H1B RFE rate of different occupations and designed the best solutions to increase your odds.
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