Key Insights:

USCIS provided a breakdown of the top 10 reasons for issuing H-1B Requests for Evidence in FY 2018. This sheds light on the increasing trend of RFEs and denial rates, particularly for H-1Bs, under the Trump administration. The data is valuable for understanding key eligibility factors for H-1B visas in FY 2020.

Below is a compilation of the primary reasons USCIS issued RFEs for H-1B petitions in FY 2018, ranked from most frequent to least frequent. It’s important to note that RFEs could be issued for multiple reasons.

10 Reasons for H-1B Requests for Evidence

Specialty Occupation

The primary reason employers receive H-1B Requests for Evidence (RFEs) regarding H-1B petitions is their failure to establish that the position qualifies as a specialty occupation. To qualify for an H-1B visa, the petition must demonstrate to USCIS that the position is indeed a specialty occupation.

This requires providing evidence that the job necessitates not only the comprehension and application of highly specialized knowledge but also typically mandates at least a bachelor’s degree, or its equivalent, in a specific field. In recent times, USCIS has adopted a narrower interpretation of what constitutes a specialty occupation, frequently questioning roles with job responsibilities that may not seem sufficiently complex to warrant a bachelor’s degree or its equivalent.

USCIS advises employers to furnish a detailed list of duties, roles, responsibilities, as well as educational and experiential prerequisites essential for executing the job. The job description should establish a clear connection between the tasks involved and the educational criteria for the position.

Employer-Employee Relationship

USCIS also issued RFEs to petitioning employers who failed to demonstrate “a valid employer-employee relationship with the H-1B beneficiary.”

Employers must establish their ability to oversee the work of the H-1B beneficiary throughout the requested employment period. This is crucial, especially if the beneficiary will work at a third-party site. Employers can provide copies of the employment contract or offer letter outlining the terms and conditions of employment to substantiate their ability to maintain a valid employer-employee relationship with the H-1B beneficiary.

Availability of Work (Off-Site)

USCIS also issued RFEs to petitioning employers that failed to demonstrate that the H-1B beneficiary, stationed at a third-party worksite, would undertake definite, non-speculative job assignments in a specialized field for the requested employment duration.

USCIS necessitates employers to substantiate that the H-1B beneficiary will be involved in actual and continuous work within a specialized field for the requested employment period. The work must not be speculative or dependent on future contracts. To establish the existence of consistent work, employers may furnish copies of executed contracts, detailed job assignments, and work orders endorsed by end-user clients, among other evidences.

Beneficiary Qualifications

USCIS issued RFEs to petitioning employers that failed to “establish that the [H-1B] beneficiary was qualified to perform services in a specialty occupation.”

An employer must prove that the H-1B beneficiary has the required credentials to work in the specialty occupation. Generally, an employer must show that the H-1B beneficiary holds at least a bachelor’s degree in the specialty field or, in the alternative, the H-1B beneficiary has sufficient training, experience, or licensure to engage in the specialty occupation.

If the H-1B beneficiary does not have a bachelor’s degree in the specialty field, an employer may consider getting a combined education and experience evaluation for a related field of study to corroborate the beneficiary’s qualifications to fill the position. USCIS also suggests that employers include a statement explaining how the unrelated degree relates to the job offered to the H-1B beneficiary.

Maintenance of Status

USCIS issued RFEs to petitioners who did not demonstrate that the H-1B beneficiary had “adequately maintained their current status.”

This typically implies that USCIS has identified a problem or deficiency in the H-1B beneficiary’s previous status. To address this concern, the beneficiary can submit copies of prior Forms I-94, Form I-797 approval notices, pay stubs, employment verification letters, and travel itineraries, among other documents.

Availability of Work (In-House)

USCIS issued RFEs to petitioning employers that did not demonstrate the existence of specific, non-speculative work assignments in a specialty occupation for H-1B beneficiaries to be placed in-house throughout the entire requested employment period.

The assessment for this issue mirrors that of off-site work, but it pertains to H-1B beneficiaries who will be working on-site.

LCA Corresponds to the Petition

USCIS also sent RFEs to petitioning employers who did not demonstrate that they acquired a duly certified Labor Condition Application (LCA) from the U.S. Department of Labor that matches the position in question.

The LCA must accurately align with the position offered to the H-1B beneficiary, particularly concerning the job title and wage level chosen by the employer. USCIS recommends that employers furnish a comprehensive description of the skills, education, and experience necessary to fulfill the job requirements.

AC21 and the Six-Year Limit

USCIS issued RFEs to petitioning employers who failed to demonstrate that the beneficiary was eligible for AC21 benefits or qualified for an H-1B extension, as it seemed that the H-1B beneficiary had reached the six-year limit.

AC21 pertains to the American Competitiveness in the Twenty-first Century Act of 2000, which permits H-1B extensions beyond the six-year maximum stay in H-1B status. To qualify for an extension, the H-1B beneficiary must prove either (1) that they are the beneficiary of a pending labor certification filed over a year ago, thus qualifying for a one-year extension; or (2) that the labor certification and Form I-140 have been approved but no visas are currently available, entitling them to a three-year extension.

An employer can submit copies of the approved labor certification or Form I-140 to demonstrate the H-1B beneficiary’s eligibility for an extension. Additionally, they may provide entry and exit stamps and trip itineraries to account for the beneficiary’s time spent outside the United States.

Itinerary

USCIS issued RFEs to petitioning employers who neglected to provide a comprehensive “itinerary with a petition that mandates services in multiple locations. The itinerary must specify the dates and locations of the services to be rendered.”

Employers must furnish an itinerary with their H-1B petitions, outlining the dates and locations of the services to be delivered, encompassing all third-party worksites. While not obligatory, a more elaborate itinerary can also serve as proof that the employer has non-speculative employment.

Unpaid Fees

USCIS issued RFEs to petitioning employers who did not fulfill all the necessary H-1B filing fees.

While it may seem straightforward, the fee system for H-1Bs is quite intricate. H-1B fees comprise the American Competitiveness and Workforce Improvement Act of 1998 fee, which fluctuates in amount and applicability based on the company’s size, the number of H-1B employees, and the type of H-1B filing.

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