What does H1B RFE mean?

Request for evidence (RFE) is an inquiry set by the United State Citizenship and Immigration Services (USCIS) to request additional evidence from applicants or petitions. RFE is used to scrutinize the adjudication of H-1B visa applications more closely so as to determine applicants’ eligibility for the benefit sought.

The reason for RFE is written specifically in the letter sent by USCIS. Normally, you have 90 days to submit relevant documents. All the supplementary documents should be able to answer all inquiries in the RFE letter.

Here are some common reasons for 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 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 experience, education, and the 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 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 REF may request proof of a foreign degree equivalent. Official school documents are necessary to provide the proof needed.

A 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 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, an RFE may request class attendance or coursework history to prove that the applicants were actually in school before they applied H1B.

 

H1B 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 H-1B 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 RFE?

Here are some steps to follow after you receive a RFE

  1. Read the RFE fully to ensure you understand it completely and have a idea of what will be needed.
  2. 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.
  3. 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.
  4. 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.
  5. Double check the address and deadline for RFE submit. Make sure your documents are delivered on time.

 

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 RFE rate of different occupations and designed the best solutions to increase your odds.

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