H1B Visa Requests for Evidence (RFE) are on the Rise

One of the ways that the Trump administration is setting up roadblocks in the H1B visa program is by increasing the number of Requests for Evidence (RFE) for H1B petitions.  The RFE is one way the immigration authorities confirm that the information in the petition is accurate, and supported by valid documentation.

Before, an RFE notification was only sent for petitions that had suspect, conflicting or missing data, but it now seems that the RFE is being used as a tool to either delay or deny H1B visa applications.  Immigration attorneys are reporting that there has been a distinct increase in RFEs, and in some cases without obvious justification.

Nonetheless, the USCIS can send you a notification for an RFE any time after you submit the petition and prior to either approval or denial.  You have no choice but to comply, and send a full documentation of the requested information.

The Six Main Reasons to Receive and RFE

The USCIS will issue an RFE notification for these six primary reasons (with simple explanations following each):

 

  • Validation Instrument for Business Enterprises: this is to verify the sponsor’s business information and whether they can legally employ a foreign worker.
  • Specialty Occupation: A core requirement of the H1B visa is that the job is in a ‘specialty occupation’, and the RFE might ask for more detail on the position offered, other similar employees in the same position and whether the education and work experience match the job.
  • Needs of the Petitioner for the Services of the Beneficiary: This RFE is issued when the sponsor’s business is not directly related to the specialty occupation listed.  For example, if an IT worker is being hired by a car manufacturer.  A legitimate need must then be shown for the services of the foreign worker in that position.
  • Beneficiary Qualifications: The worker’s education must be in the same field as the position offered, and with a bachelor’s degree earned.  If the applicant does not have a degree, then more experience must be documented as well as proof that the position is typically held by non-degreed employees.
  • Employer-Employee Relationship: An RFE issued for this reason would want to confirm that the sponsor will actually employ and pay the worker directly.  This can come up with offsite consulting or staffing type positions.
  • Maintenance of Status:  For H1B visa extensions or transfers, there may an RFE to document that the current immigration status is valid.  If a non-immigrant is ‘out of status’ for any reason, the petition will be denied.

 

The RFE Request is Just One More Step Toward Obtaining an H1B Visa

There is a process to the award of an H1B visa, and it seems every day there is a new level of rule enforcement and another hurdle to cross.  What this means is that the H1B visa program is just one part of an overall immigration reform movement in the US.  However, for foreign nationals with exceptional skills and experience, in an occupation that is highly specialized, the H1b visa is still readily available.  Even if you get an RFE, simply collaborate with your sponsor to comply and send the documents requested.   A valid petition with no red flags will be approved, assuming that all of the criteria have been met and there is a real need for a foreign workers to fill the position.

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  • October 26th, 2017
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