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Common Issues with H1-B Request for Evidence (RFE) Notices

Posted by Keshab Raj. Seadie | Mar 18, 2022 | 0 Comments

USCIS sends a notice called a request for evidence, or RFE, when they need more proof to decide an H1-B case. The H1-B classification applies to individuals who perform services in a specialty occupation. When an employer files Form I-129, Petition for a Nonimmigrant Worker, they must provide evidence of their relationship with the employee and their qualifications.

For USCIS to determine that the proffered position is a specialty occupation, the petitioner must provide adequate evidence to satisfy at least one of the four criteria:

  1. A bachelor's or higher degree or equivalent is usually the minimum requirement for entry into the particular position.
  2. The degree requirement is common to the industry in parallel positions among similar organizations. Alternatively, employers can show that their specific role is so unique that an individual can only perform it with a degree.
  3. The employer typically requires a degree or its equivalent for the position.
  4. The specific duties are so specialized that the knowledge necessary to perform the duties is usually associated with attaining a bachelor's or higher degree.

To perform services in a specialty occupation, the beneficiary must meet one of the following criteria:

  1. Hold a U.S. bachelor's or higher degree or equivalent foreign degree required by the specialty occupation from an accredited college or university.
  2. Hold an unrestricted state license, registration or certification which authorizes them to practice the specialty occupation and be immediately engaged in that specialty in the state of intended employment
  3. Have education, specialized training, and/or progressively responsible experience equivalent to completing a U.S. bachelor's or higher degree in the specialty occupation, and have recognition of expertise in the specialty through progressively responsible positions directly related to the specialty.

If adequate initial evidence is not submitted with an H1-B petition or does not demonstrate eligibility, USCIS may deny the request for lack of proof or request that the evidence is provided within 12 weeks. A request for evidence will specify the evidence already provided and what is still required. There are several reasons why USCIS may issue an RFE:

  1. Specialty Occupation

The petitioner did not establish that the position qualifies as a specialty occupation defined by the four criteria.

  1. Employer-Employee Relationship

The petitioner did not establish a valid employer-employee relationship with the beneficiary by having the right to control the beneficiary's work, including hiring, firing, or supervising the beneficiary for the requested period.

  1. Availability of Work

The petitioner did not establish that they have specific qualifying assignments in a specialty occupation for the beneficiary for the entire time requested in the petition.

  1. Beneficiary Qualifications

The petitioner did not establish that the beneficiary was qualified to perform services in a specialty occupation.

  1. Maintenance of Status

The petitioner did not establish that the beneficiary properly maintained their current status.

  1. Labor Condition Application (LCA)

The petitioner did not establish that they obtained a certified LCA and that the LCA corresponds to the position. An LCA as certified by the Department of Labor must accurately represent employment terms.

  1. AC21 and Six-Year Limit

The petitioner did not establish that the beneficiary was eligible for AC21 (American Competitiveness in the 21st Century Act) benefits or suitable for an H1-B extension after hitting the six-year limit.

  1. Itinerary

The itinerary accompanying the H-1B petition must include the dates and locations of the services to be provided.

  1. Filing Fee

The petitioner did not establish that they paid all required filing fees.

USCIS checks all petitions filed for H1-B through the Validation Instrument for Business Enterprises (VIBE) Program. VIBE uses data from an independent information provider to validate basic information about companies petitioning to employ noncitizens. Discrepancies between evidence submitted through the petition and information obtained by VIBE can cause an RFE notice.

An important note is that USCIS updated its policy guidance regarding deference in prior eligibility determinations. That guidance directed officers to generally defer to initial determinations of eligibility when adjudicating petition extensions involving the same parties and facts as the initial petition. USCIS will consider previous decisions made and afford deference to its prior decision-making. President Biden's executive order aims to identify barriers that impede fair access to immigration benefits.

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