How to Avoid H-1B Requests for Evidence (RFEs) and Possible Denials as USCIS Raises the Bar for Approval

How to Avoid H-1B Requests for Evidence (RFEs) and Possible Denials as USCIS Raises the Bar for Approval

March 25, 2019

By Paul Chen and Bernard Wolfsdorf

April 1 the start of FY2020 will be the start of H-1B Cap Season when cases are filed hoping to be selected in the lottery. As noted in our recent news alert, we expect a significantly high demand for H-1B visas this year. While WR has had an extremely high approval rate, the number of RFEs have been increasing. The USCIS recently shared alarming data that 60% of H-1B cases are getting RFE’s (Requests for Evidence) and 40% of cases after receiving an RFE are getting denied. These are historically very high denial rates and clearly USCIS is seeking more information to qualify as a specialty occupation position.

Here are some final reminders to avoid the dreaded RFE.

  1. Specialty Occupation: did the petitioner establish that the position qualifies as a specialty occupation, e.g. that the company or the nature of the position normally requires a bachelor’s degree for that proffered position?
  1. Employer-Employee Relationship: did the petitioner establish that they had a valid employer-employer relationship with the beneficiary, by having the right to control the beneficiary’s work, including the ability to hire, fire, or supervise the beneficiary, for the duration of the requested validity period.
  1. Availability of Off-site Work: for those employees who will be working off-site, did the petitioner establish that they have specific and non-speculative qualifying work in a specialty occupation?
  1. Beneficiary is Qualified: does the employee have a US Bachelor’s degree (or equivalent), and if using a foreign degree, was it properly evaluated with a credentialed evaluation agency?
  1. Maintenance of Status: did the employee properly maintain their current status. The prime example is whether an F-1 student maintained OPT work authorization and was not unemployed for more than 90 days or where an H-4 beneficiary is able to prove that the spouse properly maintained H-1B status the entire time.
  1. Availability of work (in-house): did the petitioner establish that they have enough specific work in a specialty occupation?
  1. LCA Corresponds to the Petition: The Labor Condition Application must be properly certified, and it must correspond to the proffered position and terms of the petitioner (e.g. prevailing wage, start and end dates, worksites match LCA).
  1. Itinerary for multiple work locations: did the petitioner submit an itinerary with the case when the company requires work to be performed in multiple locations?
  1. Fees: were the correct filing fees paid?
  1. Filing with the correct USCIS service center for regular cap and US masters cap cases at the California Service Center or Vermont Service Center

The above USCIS provided tips address the most common reasons for RFE issuance. We at WR wish you good luck in the upcoming H-1B lottery selection. As the H-1B cap season starts soon in April 1, 2019, feel free to contact a WR Immigration professional with any questions about H-1B filings at 1(800) VISA-LAW or (310) 570-4088 (LA) or 1(212)899-5040 (NY) or 1(415)728-9800(SF) or 1(415) 371-1800 (Oakland).

2019-03-25T19:07:22-08:00 March 25th, 2019|

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