Once your application is selected in the H-1B lottery, the next crucial step involves filing the petition. However, lack of proper documentation may prompt USCIS to issue an RFE, causing delays in the hiring process and making it complex for employers to facilitate a smooth transition for H-1B beneficiaries. In extreme cases, the petition may even get rejected.
This blog will help employers understand the key factors that lead to an RFE and suggest proactive steps to avoid it, confirming a smooth H-1B petition process.
What is an RFE?
A Request for Evidence (RFE) is a notice issued by the United States Citizenship and Immigration Services (USCIS) to an applicant when their visa or immigration petition lacks essential documentation or fails to prove the petition’s legitimacy. Applicants must respond promptly to an RFE with all required evidence, as failure to do so may result in petition denial.
Difference Between RFE and RFAE
RFE
- A Request for Evidence is issued by the USCIS when the H-1B petition initially submitted fails to provide enough documentation or evidence.
- Applicants must respond to an RFE within the deadline (Usually 87 days)
RFAE
- A Request for Additional Evidence is a notice issued by the USCIS in response to a previously submitted RFE. It is issued when the RFE is incomplete or fails to provide proper evidence.
- Applicants may respond to an RFAE within the deadline, which may vary based on the case.
What Triggers an RFE?
Some common reasons why USCIS may issue an RFE include:
- Determining Specialty Occupation: The job role must qualify as a specialty occupation, requiring a bachelor’s degree or higher in a specific field. Generic or vague job descriptions can lead to an RFE.
- Beneficiary Qualifications: The job role must align with the H-1B beneficiary’s qualifications. If USCIS is not able to establish a proper connection between the two, they may ask for further proof.
- Availability of work: The employer must confirm that the H-1B beneficiary will have sufficient work to do throughout their complete visa period. If the H-1B worker is assigned to a third-party worksite, USCIS may issue an RFE to ensure the employer will have proper control over their work.
- Wage issues: Selecting a relevant Standard Occupational Classification (SOC) code is important as it allows employers to categorize jobs according to their duties and skill levels. USCIS may demand additional evidence if the selected SOC code does not align with the job duties and qualifications required for the job role.
- Lack of sufficient supporting documents: The employer is required to submit all necessary documents such as client letters, contracts, and detailed work itineraries that will strengthen their H-1B petition. USCIS may issue an RFE if adequate proof is not submitted.
What to do When You Receive an RFE?
An RFE does not necessarily mean that your H-1B petition will be denied, but rather it is another fair chance for you to submit necessary documentation and improve your overall chances of petition approval.
Employers must follow these steps if they are issued a Request for Evidence:
- Read the RFE carefully: Read and understand the document thoroughly as all crucial details regarding your application and required proof will be mentioned here.
- Check the deadline: It is important to respond to USCIS within the given deadline, as failure to do so will lead to petition denial. Normally, the deadline is 87 days, but the exact deadline can vary depending on the case. The response deadline is always mentioned in the RFE notice, so employers must review it carefully and respond timely to avoid case denial.
- Consult an immigration attorney: Consult an experienced immigration attorney to seek proper guidance on filing a systematic RFE.
- Gather required documents: Collect all important documents that you did not submit with your petition, including the company’s financial details, job details, and employee qualifications.
- Prepare a detailed response: Address all points mentioned in the RFE with proper supporting documents, improving the legitimacy of your petition.
- Submit before the deadline: Don’t wait for the last moment to respond to an RFE. Make sure to submit all details timely with the help of your immigration attorney.
- Follow up: Track the case status using the USCIS case status tool and wait for their decision. If additional proof is required in response to your RFE, USCIS will issue an RFAE.
How can Employers Avoid RFEs?
Employers can take the actionable steps below to ensure they don’t receive an RFE and that their petition is systematically submitted per the USCIS guidelines.
- Establish a proper employer-employee relationship
- Employers must submit proof that will confirm the employer’s control over the employee’s work and other important things including hiring, firing, supervision, salary, and daily responsibilities.
- Employers must submit a formal employment agreement, mentioning the job role, duties, salary, and benefits in detail, and create an organizational chart that will provide USCIS with a proper reporting structure.
- Employers must submit copies of performance reviews, project plans, task assignments, and email communication to show consistent supervision.
- Make sure the job role qualifies as a specialty occupation
- Employers must make sure the job they are hiring the H-1B worker for clearly aligns with their qualifications. Ensure the job requires a bachelor’s degree in a specific field and avoid generic job descriptions.
- Refer to the U.S. Department of Labor’s Occupational Outlook Handbook (OOH) to confirm degree requirements.
- Provide detailed information for third-party worksites
If the employee will be working at a client site, the employer must submit the following documents:
- A detailed report that will cover the complete work period.
- End-client letters, confirming the project and proving the employer’s control over the employee.
- Contracts and SOWs (Statement of Work) to validate the assignment.
- Select the correct SOC code and prevailing wage
- Employers must make sure that the SOC code they choose accurately matches the job role and required qualifications.
- Employers must ensure the prevailing wage meets the DOL’s requirements.
- Submit proper evidence for beneficiary qualifications
- Include an equivalency evaluation if the H-1B beneficiary has a foreign degree and provide all educational transcripts and professional certificates.
- If the job role you are hiring for requires previous working experience, then make sure to submit letters from previous employers.
- Ensure consistency across all documents
- Ensure all important details in the job description such as LCA, Form I-129 petition, and offer letter match evenly. To maintain consistency across all documentation, review all details mentioned at least twice.
- Ensure the worksite address mentioned in the petition matches the information in the LCA and employer letters.
- Ensure business viability proof (new or small employers)
- If the organization is new, provide essential documents such as tax returns, bank statements, and payroll records to prove your business’s legitimacy.
- Provide other supporting documents including client contracts, invoices, and client agreements to show your business’s current ongoing state.
- Work with an immigration attorney
- Employers must consult with an experienced immigration attorney who will help them file a well-organized petition, eliminating common errors and last-minute delays.
What is a Notice of Intent to Deny?
A Notice of Intent to Deny (NOID) is a formal notice issued by the USCIS, it is more serious than an RFE and indicates that the USCIS has found several issues with your H-1B petition, and your petition will be denied if you fail to submit strong evidence. Employers must consult an immigration attorney and respond within the deadline provided by USCIS (usually 30 days). It is crucial to submit a strong and timely response within the given timeframe.
Summing Up
An RFE is a notice issued by USCIS requesting additional information to support your H-1B petition. An employer may be issued an RFE if the agency has issues determining specialty occupation, beneficiary qualifications, availability of work, wage transparency, and lack of sufficient documentation.
Employers must review the RFE carefully and collect all important documents they previously failed to submit. It is important to consult an experienced immigration attorney and respond to an RFE within the deadline provided by the USCIS as failure to do so will lead to petition denial. If more evidence is required in response to your RFE, USCIS may issue an RFAE.
How does OnBlick help?
Avoiding RFEs can be tricky, but OnBlick ensures you stay updated with immigration law changes and meet all necessary requirements effortlessly.
OnBlick’s SOC Code predictor collects data from credible sources such as O*NET/ FLC Data/BLS.gov and recommends the appropriate SOC code based on the role. Also, our wage calculator, attorney services, HRBP services, and other H-1B case management services help you stay compliant with the USCIS guidelines.
To learn how OnBlick can streamline your H-1B filings, book your free demo today.
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