Do you constantly watch the update of your H-1B petition on screen? Are you aware of the difference between RFE and approval? If not, then don’t worry. In this article, you’ll be guided through the meaning, process, and requirements of RFE (Request for Evidence).
An H-1B Request for Evidence is a part of the legal procedure followed by USCIS to ask for additional documents before fully approving an H-1B petition. Receiving an RFE doesn’t imply rejection of your H-1B visa petition. The specific documents are sought after to process the petition smoothly.
These documents are related to either the foreign national or the employer or in certain cases both. A 90 day-window is generally granted to submit these documents. It’s highly advised to remain organized while answering queries or solving doubts.
In the worst case, if the demands of USCIS through RFE are not met, then your H-1B petition will be rejected. Do not delay in gathering the information and documents as it’ll jeopardize the possibility of your petition getting approved.
As soon as you receive an RFE, the best approach is to consult an immigration attorney to know the further course of action. We at http://www.h1bvisajobs.com provide access to many H-1B experts and lawyers who can enrich your understanding of the entire process of obtaining an H-1B visa
Before we get into the core of the article, let’s understand H-1B RFE trends and rates.
H-1B RFE Trends and Rate
It’s essential that before gardening any false hope, we comprehend the past and ongoing trend and rate of H-1B RFE.
In case of transfer, extension, or filing a new petition, the employer must send Form I-129 to the USCIS. In each case, USCIS will send RFE to seek additional proofs in the guise of documents. Owing to different administrations in office, the H-1B RFE trend has changed in recent years.
Compared to previous years, the H-1B denial rate is increasing due to several reasons such as multiple petitions for the same beneficiary, fake entries, fake document submissions, and more. Only 60% of H-1B RFEs were approved in 2018 and since then the percentage hike in the year 2021 amounts to 86 %.
It’s interesting to note that at the end of the fiscal year 2023, the approval rate is lowering and has come down to 79%. 2024 is full of surprises for the H-1B applicants as there’s an election and the USCIS follows a stringent approach to process the H-1B petition.
RFE vs NOID
Now that you’ve got a basic understanding of RFE, you must also note its difference from NOID which stands for Notice of Intent to Deny. NOID is issued mostly in case the officer in charge scrutinizing your petition is intended to deny it. On the contrary, you know RFE is issued when there’s any missing document or an error with the information mentioned in the petition.
You must also note the difference between the terms rejection and denial. Rejection is applied in case there is a technical error like omitted information or fee payment, whereas Denial is applied when you don’t meet the demands/requirements of visa approval or don’t merit the visa.
If you or your employer aren’t qualified for the H-1B visa, NOID will be issued by the USCIS to dodge the possibility of encountering a re-filing of a petition by the same petitioner. Nevertheless, this can be resolved by rectifying the mistakes and gathering/submitting appropriate proofs and documents to satisfy the demands, as in the case of RFE.
Can a Beneficiary Respond Directly to an RFE?
No, a beneficiary cannot respond directly to an RFE.
It must go through the employer, much like the case of the H-1B petition where a beneficiary isn’t required to sign the petition. However, the beneficiary can look at the status of his/her case by using the petition’s case receipt number.
Top 12 Reasons for Request for Evidence
As we head into the H-1B filing season for FY2024 and the denial rates are accelerating unprecedentedly, we must note the factors that influence the decision of USCIS to define the eligibility for an H-1B visa.
VIBE or Validation Instrument for Business Enterprises is a tool used by USCIS to avail the information that’s commercially accessible to match with the information provided in the petition. If there’s any alteration in address, structure, wage reports, or more, an RFE will be issued directly.
There are several reasons why USCIS may issue an RFE, all of which are stated below for your kind reference:
1. Specialty Occupation
An RFE will be issued if the petitioner fails to establish the fact that the given position qualifies as a specialty occupation and that the beneficiary is qualified for it, as stated in section 214(i)(1) of the Act and 8 CFR 214.2(h)(4)(ii) and/or that it meets at least one of the four criteria in 8 CFR 214.2(h)(4)(iii).
The most basic requirement is a bachelor’s degree or equivalent for the position, however, the approval of ‘specialty occupation’ is given by the adjudicating officer who might ask for the beneficiary’s work experience, job description, offered salary, and more. USCIS inquires about the necessity of a bachelor’s degree or equivalent along with the caliber of the beneficiary to be eligible for a specialty occupation. Be ready to answer any query and come closer to your visa.
2. Employer-Employee Relationship
If the petitioner fails to provide evidence that guarantees the employer-employee relationship, then an RFE will be issued. This pertains to the petitioner possessing full authority to control the beneficiary’s work, such as the ability to hire, fire, or supervise the beneficiary, for the duration of the requested validity period.
In case the employee is allotted a new location to perform his role, the USCIS will look for an answer to these questions: Where does the employee perform the job role? How the employer will maintain control over the H1B employee? Is there any proof that the specialty occupation can be performed from the offsite location? and so on.
3. Availability of Work (Off-site)
An RFE is issued if the petitioner lacks evidence to justify and establish the availability of specific and non-speculative qualifying assignments in a specialty occupation (off-site) especially for the beneficiary for the duration as requested in the petition. The most sought-after documents are the project statement of work (SOW), client contact letter, and more. USCIS seeks clarification about how the employer will control the employee if the employee is working off-site location.
4. Beneficiary Qualifications
As stated above, the least educational degree that’s sought is the bachelor’s degree. USCIS requires proof to justify how is the degree aligned with the proposed H-1B job. An RFE will be issued to request more information about the beneficiary’s qualification to perform services in a specialty occupation per r 8 CFR 214.2(h)(4)(iii)(C).
5. Maintenance of Status
If the petitioner doesn’t submit proof to justify the beneficiary’s properly maintained current status, an RFE will be issued. You may violate the status rules if you file several H1B extensions or amendments quickly for multiple end-client projects and if your i94 expires in between with no approval.
6. Availability of Work (In-house)
An RFE is issued if the petitioner lacks evidence to justify and establish the availability of specific and non-speculative qualifying assignments in a specialty occupation (on-site) especially for the beneficiary for the duration as requested in the petition.
7. LCA Corresponds to Petition
You can expect an RFE if the petitioner has skipped the Labor Condition Application (LCA) process or fails to establish that they obtained a properly certified Labor Condition Application (LCA) from the Department of Labor and that this LCA properly corresponds to the proffered position and terms of the petition.
LCA is nothing but a declaration by the employer regarding the terms of employment, a notice of H1b hiring, etc. This process is crucial as USCIS might reject your petition instead of issuing an RFE. So be careful.
8. AC21 and Six-Year Limit
An RFE will be issued if the petitioner doesn’t establish that the beneficiary is eligible for AC21 benefits or is otherwise eligible for an H-1B extension as it appeared that H-1B has hit the six-year limit by using either an approved i140 or a PERM pending for more than a year.
9. Itinerary
If the petitioner fails to meet the itinerary requirement at 8 CFR 214.2(h)(2)(i)(B), which needs petitioners to submit an itinerary with a petition that demands services to be performed in more than one location, an RFE will be issued. The itinerary must include the dates and locations of services to be provided along with the following details:
- Your job responsibilities
- Duration of the job
- Your salary and benefits
- Other job requirements
- Hours worked on the job
- Details about the supervisor
10. RFE for Living Far Away from Office
If you live far away from your office, then you must expect an RFE seeking reasons for staying so far away from the workspace. While there are no official mile range criteria, USCIS argues that there must be a reasonable commutable distance between the employee’s home and the employer’s office. However, if you’ve valid reasons to justify the distance, no need to worry about getting approval from USCIS.
11. F1 OPT, CPT Total Time Spent
It’s worth being cautious of USCIS getting strict with Day 1 CPT and the number of times you make use of the OPT, CPT, and STEM OPT to work in the USA. USCIS issues an RFE if the beneficiary gets additional CPT or OPT again by enrolling in a second master’s degree, even after getting it during the first master’s degree. USCIS says that a new CPT or OPT can be taken up for a new educational level, such as a bachelor’s degree level and later a master’s degree level.
12. Fees
Expect an RFE if the petitioner doesn’t prove that they’ve paid H-1B filing fees and other necessary fees.
Conclusion
You must respond in full after receiving an RFE for any reason. Consult an attorney to grab the matter completely and learn the ways of responding to the RFE. At h1bvisajobs.com, you’ll acquaint yourself with wise and highly experienced H-1B immigration attorneys who deliver customized services based on the needs and requirements of the clients.