Comparing the H-1B application and approval data from previous fiscal years, since Trump’s departure and Biden assuming presidency, the United States has returned to a relatively immigrant-friendly era. The approval rate for H-1B visas has skyrocketed from the dismal 85% during the Trump era to a peak of 98%. Additionally, the Request for Evidence (RFE) rate has returned to a relatively normal range, dropping from the exaggerated 40% during the Trump era to around 10% currently.

Although there has been an improvement in the H-1B approval situation, receiving an RFE still needs to be taken seriously. Mishandling it could risk wasting the hard-earned H-1B opportunity. Today, in this article, we will discuss various issues related to encountering RFEs in the H-1B application process.

What is an RFE?

RFE, short for Request for Evidence, is a notice issued by the immigration authority to applicants requesting additional or alternative evidence when the provided application materials are deemed insufficient or unable to make a determination. It essentially provides applicants with a second chance to be approved, which they must seize.

Timeline for replying to an RFE?

The immigration authority will specify the deadline for submitting RFE materials in the RFE notice, usually within 90 days. After receiving the applicant’s response, the immigration authority typically takes an average of 2-3 months to process the RFE.

Therefore, for those who receive RFEs in August or September, time is somewhat tight, especially if they want their H-1B to take effect normally on October 1st. It’s crucial to act promptly when responding to RFEs. Alternatively, applicants can expedite the process during the RFE stage by opting for Premium Processing (PP), which guarantees a decision within 15 calendar days upon payment of the $2,805 expedited processing fee.

However, it’s essential to note that even with expedited processing, the result received may not be final. Possible outcomes include approval notices, denial notices, notices of intent to deny (NOID), requests for additional evidence (RFEs), or investigations for fraud or misrepresentation. If an applicant receives another RFE or a notice of intent to deny, they have an additional 15 days to respond after the immigration authority receives their response.

Common H-1B RFE issues include:

1.Specialty Occupation

The H-1B position requires the beneficiary to possess a high level of theoretical and practical knowledge in a specific field and hold at least a bachelor’s degree or higher in a particular major from a U.S. institution or its equivalent.

Specialty occupation is the most frequently questioned aspect of H-1B applications. Having more materials prepared does not necessarily mean the job function is more complex, and a broad scope of work does not necessarily indicate a higher level of specialization in the position. The immigration authority explicitly states that the description of the position should not only be related to the company’s requirements for the position but also linked to the beneficiary’s academic background.

Although the immigration authority’s official regulations only require meeting one of the following four criteria, experienced immigration lawyers will endeavor to meet all the requirements set by the immigration authority regarding “specialty occupation”:

• The employer requires a minimum educational qualification of a bachelor’s degree or higher or its equivalent for the position offered.
• The prevailing wage level for the position in the same industry generally requires a bachelor’s degree or higher.
• The employer has traditionally required a bachelor’s degree or higher for the position.
• The job duties are so complex and specialized that they can only be performed by someone with a bachelor’s degree or higher.

 2.Employer-Employee Relationship

If there is a need for the beneficiary to be assigned to work at a third-party location, it is essential to strengthen the application materials in this regard. While proving and maintaining a genuine and reliable employer-employee relationship may seem straightforward, it has tripped up many individuals who need to work at third-party locations, making it a common reason for RFEs in H-1B applications.

The immigration authority has provided specific explanations regarding the interpretation of the employer-employee relationship. To prove this relationship, the applicant must adequately demonstrate that the employer has absolute control over the beneficiary’s work hours, work location, and job responsibilities.

In cases where the beneficiary will be working at a third-party location for an extended period, it is crucial for the applicant to have a contract with the client company. The beneficiary should be assigned to work at the client company for an extended period, while still reporting regularly to the employer’s manager, receiving salary payments from the employer, and enjoying employee benefits provided by the employer. Such an employment relationship, certified by the immigration authority, aligns with their definition of a “genuine and reliable employer-employee relationship.”

3.Maintenance of Status and CPT-related issues

Many applicants who were previously unsuccessful in the H-1B lottery may choose to continue working using Curricular Practical Training (CPT). In such cases, it is common for the immigration authorities to request proof of maintaining legal status and genuine attendance in CPT classes.

Additionally, if the H-1B application involves a change of status conducted within the United States, rather than applying for an H-1 visa at a U.S. consulate abroad and then activating the H-1B upon entry, the immigration authorities will also closely scrutinize whether the applicant has maintained legal status throughout.

4.Beneficiary Qualifications

The questioning of the specialty occupation pertains to whether the beneficiary’s position requires a high level of specialization and whether it necessitates someone with at least a bachelor’s degree to perform the job. The evaluation criteria for employee qualifications involve determining whether the field of study closely aligns with the current position and industry.

If the undergraduate or graduate degree program chosen by the applicant is broad in scope, it is essential to thoroughly review the academic coursework and transcripts with the legal team. Efforts should be made to demonstrate to the immigration authorities that the knowledge acquired in the field of study is directly applicable to the current job position, thus proving that the education serves the ultimate purpose of utility.

Other Common Issues:

In addition to the common RFE reasons analyzed in detail above, the immigration authorities have also listed some common error types, including:

• Availability of Work
• LCA Corresponds to Petition
• AC21 and Six Year Limit for H-1B Extension beyond the six-year limit
• Itinerary for work at third-party locations
• Issues related to application fees

The following figure shows a common RFE explanation provided by the immigration authorities during the years when H-1B RFEs were prevalent. You can use it as a reference.