H1B RFE

An H1B RFE (Request for Evidence) is what USCIS sends out when they need additional information for processing your RFE case. You may receive the RFE through the U.S. Postal Service or be notified through their online portal. Since USCIS must have proof of employment in the U.S., RFEs for H1B visa applications often stem from an unclear application or missing documentation.

If you're in the middle of submitting an H1B visa application, it is possible that you'll receive an H1B RFE in the mail from USCIS. This does not mean that your application is denied. It simply means that USCIS has determined that it needs more information to move your application forward. There is a 30 percent chance that your H1B visa application will result in an RFE.

Who Can Qualify for an H1B Visa?

There are special requirements to qualify for an H1B Work Visa, and most people will not qualify. Essentially, a foreign worker can qualify if he or she meets the specialty occupation requirements and is a non-immigrant. To qualify for the specialty occupation requirement, a worker must have completed a level of higher education and be the only person who can effectively do the job in question because of that higher education credential.

Judgments on approvals are overseen by an adjudicating officer, and those judgments are final. These judgments are based on a variety of factors concerning the applicant and the company, including the potential for earnings and the type of work that will be done. USCIS generally sends RFEs to find out if there are similar employees in the company and to obtain more information about the project. That way, USCIS can make a better judgment on whether the applicant would be a good fit for the H1B Work Visa program.

Validation Instrument for Business Enterprises (VIBE)

The Validation Instrument for Business Enterprise, also known as the VIBE, is a system that the USCIS uses to validate information provided in am H1B classification filing. The VIBE is authorized to use any and all commercially available information that pertains to the petitioner in an attempt to verify basic details that pertain to them. It's possible that the VIBE might identify discrepancies between the information that you provide and what they have in their systems if:

  • Your establishment opened recently.
  • You've recently relocated your business.
  • Your business has recently undergone a structure change.

Some of the documents required for verification of information include:

  • Your Federal Tax Identification Number, or FEIN.
  • The lease agreement for your office space.
  • Corporate tax returns.
  • Corporate bank statements.

These are just a few examples of required documentation. Don't be surprised if you're asked to provide information not covered in this list.

Is the Applicant Needed?

One of the key functions of the application and RFE processes is to determine if the company has a need for the worker. If an alternative worker is readily available, or if the foreign worker is not well-suited to the job, then USCIS will probably deny the visa. This protects both the applicant and the company. USCIS tries to prevent applicants from being brought into a company and given a different or lesser job than what was expected. USCIS will ask for proof that what the company wants the applicant to do matches the job description.

A small business that wishes to hire a foreign worker may receive a Request for Evidence from the USCIS to assess their need for the beneficiary's professional services. When an auto shop, for example, is petitioning for a foreign worker to fill an accountant position, they will most likely need to qualify their need for this specific person's services. Or, for example, when a construction company petitions for the services of a financial planner, the USCIS will likely make a similar request.

If the petitioning business is unable to support their need with proper documentation, the USCIS will likely conclude that the beneficiary will have reason to look for a better opportunity once they arrive. In cases such as this, the USCIS may require the petitioner to provide proof to the effect that the beneficiary qualifies for employment with their establishment under a Specialty Occupation.

Specialty Occupation Qualification

Foreign workers that may be considered to fall under the category of Specialty Occupation might also be able to qualify for non-immigrant classification under H1B. A foreign worker that wishes to apply for a Specialty Occupation qualification will be required to meet one or more of the following:

  • Completed higher education, such as a Bachelor's degree or higher.
  • The position must be complex enough that it can't be performed by somebody without a relevant college degree.
  • The employer must normally require a relevant degree or equivalent work experience to hold the position in question.
  • Obtaining a degree in a specific degree of study is required to perform the technical duties related to the position.

Ultimately, the petitioner's assigned adjudicating officer will have the final say when deciding if a foreign worker should qualify for H1B under a Specialty Occupation classification. The adjudicating officer will make their decision based on additional criteria, such as:

  • The beneficiary's salary.
  • Professional experience and relevant education.
  • The nature of the business in question.

The USCIS may also request additional information including:

  • A detailed job description.
  • Job vacancy announcements for the position in question.
  • Documentation that shows the level of education for others that hold the same position within the company.

Beneficiary Qualifications for H1B Petitioners

There are certain qualifications that USCIS looks for in H1B petitioners. These qualifications are used to ensure that applicants meet strict criteria, which include:

  • Bachelor's degree or higher in a related field.
  • Work experience.
  • Professional status.

It's worth noting that simply holding a degree is not sufficient in these scenarios. The beneficiary's higher education must directly pertain to the position in question or, at the very least, be closely related. If the relation isn't readily apparent, the USCIS will likely require you to provide evidence that the beneficiary's degree is relevant to the job they're being offered. The burden of proof will also lie with the beneficiary to show that their foreign degree is directly equal to a Bachelor's degree that would be obtained in their field of study in the United States.

Similar to proving that the beneficiary has a relevant higher education, it will also be necessary to show that they have relevant work experience. The adjudication officer that has been assigned to the petition in question will evaluate all of these factors and use the information available to them to determine whether or not the beneficiary should be qualified as a "professional" in their field.

Employer Relationship Requirements

USCIS will ensure that an appropriate employer/employee relationship exists between you and your employer. If you work in a remote location, or if there's another question about your relationship with your employer, USCIS may request additional evidence that working for your employer meets certain criteria. This may include requesting an organizational chart, health insurance documentation, or proof of enrollment in a company-sponsored 401(k) plan.

How to Respond to an RFE

There is no need to rush when responding to an RFE. It is better to take the time you need to respond effectively rather than risk creating a new problem. The most effective way to respond to an RFE is to do the following:

  • Gather the needed documents
  • Prepare the documents for mailing, including verifying the mailing address
  • Submit the documents before the deadline with enough time for the documents to reach USCIS

When to Consult with an H1B Visa Lawyer

If you do not have an attorney, it would be wise to get one. An attorney can make this process much easier and raise your chances of successfully applying for an H1B visa. Consult with an immigration attorney to manage the application and response process and ensure that you are doing everything right. A good immigration attorney has the expertise in H1B RFEs to help you navigate the process successfully.

Attempting to navigate issues that pertain to H1B Visas and Requests for Evidence from the USCIS is usually not a very good idea. These are very complex issues and, without help from a professional with the kind of knowledge and experience to work through them successfully, you're likely not going to get the kind of results you would like.

How Long Does It Take to Get a Decision?

How long the process takes depends on many variables. However, most decisions take place within three to twelve weeks. To expedite the process, make sure that you send the requested documentation as soon as possible.

If you need help with an H1B RFE, you can post your legal need on UpCounsel's marketplace. UpCounsel accepts only the top 5 percent of lawyers to its site. Lawyers on UpCounsel come from law schools such as Harvard Law and Yale Law and average 14 years of legal experience, including work with or on behalf of companies like Google, Stripe, and Twilio.