H-1B Request for Evidence Explained

When navigating the H-1B visa process, you might face a Request for Evidence (RFE) from the United States Citizenship and Immigration Services (USCIS). An RFE, which is not a denial, requests additional documentation to clarify or supplement your visa petition. Commonly, RFEs are issued to verify if a job qualifies as a ‘specialty occupation’—a key requirement for the H-1B visa, indicating the position demands specialized knowledge typically acquired via a bachelor’s degree in a relevant field. Your employer must demonstrate both the job’s specialized requirements and your qualifications to fill it. Addressing an RFE thoroughly is crucial to prove eligibility and secure visa approval, requiring meticulous attention to USCIS’s guidelines and deadlines. This blog will guide you through effectively responding to an RFE.

Understanding RFEs in H-1B Petitions

In the process of an H-1B visa petition, encountering a Request for Evidence (RFE) is a critical juncture that requires your immediate and meticulous attention to move towards approval.

The Basics of RFEs

An RFE is a formal request from the United States Citizenship and Immigration Services (USCIS) asking for additional proof to decide if your H-1B visa petition meets all the necessary eligibility criteria. When you receive an RFE, it is not an indication of denial. Instead, it signals that the USCIS requires more information to verify the details you’ve provided in your petition.

Common Reasons for RFE Issuance

• Specialty Occupation: You must prove that the job offered is in a specialty occupation and requires the theoretical and practical application of a body of highly specialized knowledge.
• Employer-Employee Relationship: Evidence is needed to confirm that the petitioner has a legitimate employer-employee relationship with the beneficiary, with the appropriate degree of control over the beneficiary’s employment.
• Beneficiary Qualifications: You’ll need to present documentation verifying that the beneficiary (the prospective visa holder) meets the educational and professional requirements for the role.
• Maintenance of Status: If the beneficiary is already in the U.S., there needs to be evidence showing maintenance of their current visa status.

Responding to an RFE

When responding to an RFE:

1. Deadline: Pay careful attention to the response deadline provided by USCIS, as a late response may result in the denial of the petition.
2. Documentation: Provide all requested evidence, which may include a detailed job description, letters of support, educational certificates, and a Labor Condition Application (LCA).
3. Additional Evidence: Sometimes, USCIS might seek more than what’s specified in the RFE. Include any supplemental documentation that could strengthen your petition.
4. Immigration Attorney: Consider consulting with an immigration attorney, as they can help ensure that your response meets the burden of proof expected by USCIS.

Respond promptly and thoroughly to RFEs. Ensure that every piece of requested information is accurate and complete to increase the likelihood of your H-1B petition’s approval.

Strategies for H-1B RFE Success

When faced with an H-1B Request for Evidence (RFE), preparing a thorough and compliant response is essential to maintain a high probability of approval. Your approach must be meticulous, ensuring every piece of required documentation is included and that all legal criteria are met.

Preparing Effective Documentation

Your documentation must convincingly address the points raised in the RFE. The following strategies can help:

• Job Description: Provide a detailed job description that aligns with the Department of Labor’s definitions to reinforce the specialty nature of the position.
• Proof of Work Experience: Include clear evidence of relevant work experience, which may include detailed letters from previous employers, performance evaluations, and a resume that matches the H-1B job criteria.
• VIBE System: Understand that USCIS uses the Validation Instrument for Business Enterprises (VIBE) system. You can proactively provide business documents that corroborate the information found in the VIBE system.

Documentation checklist:

• Detailed job description with a list of duties
• Letters verifying past employment
• Evidence of OPT (Optional Practical Training) employment, if applicable
• Company business plans or financial statements

A well-documented response increases your chances of success, especially considering the varying approval rate which stood at an approximate 81% in 2023 for cases with RFEs.

Legal Considerations

Navigating the legal landscape requires a nuanced understanding of the H-1B process:

• AILA and USCIS Memoranda: Stay updated on guidance from the American Immigration Lawyers Association (AILA) and USCIS policy memoranda that affect the adjudication process.
• Department of Labor Regulations: Ensure compliance with Department of Labor regulations, particularly regarding the prevailing wage for your occupation.
• Immigration Attorney: Consulting with an experienced immigration attorney can be beneficial. They can provide insights into the complexity of the process, including aspects like premium processing, which can expedite your case.
• Legal Criteria Compliance: Your response must meet the legal criteria set forth in the H-1B guidelines, which includes proving the job is a specialty occupation and you are qualified for the position.

Bear in mind that the H-1B visa process is legal in nature and has specific criteria that must be met. Professional legal advice can be instrumental in navigating the nuances of this complex immigration pathway.

“Premium Processing Clock Stopped” – H-1B RFE

For H-1B applicants who have filed their petitions with premium processing, receiving a “premium processing clock stopped” notice after responding to a Request for Evidence (RFE) can cause confusion and anxiety. However, based on experiences shared in an immigration forum, this notice doesn’t necessarily mean bad news.

One applicant described their situation: “On September 29, I received a notice that says ‘premium processing clock was stopped for my case’…My attorney hasn’t received any confirmation from USCIS. Can anyone let me know if this usually happens?”

The responses provided some clarity on what this notice likely signals:

“I got my H-1B petition approved a couple of days back. But my receipt number status said a similar thing as yours. After 24 hours the status changed to petition approved.”

“Same thing happened to me as well. It will probably change to approved state in a few hours.”

“I saw this message TWICE with no explanation after sending in the RFE and it was finally approved.”

It seems the “premium processing clock stopped” notice often arises when USCIS needs a little more time beyond the 15-day premium processing window to complete review of the RFE response. Rather than an outright Request for Evidence or denial, it is simply flagging that the processing has been temporarily paused.

While definitely an anxious situation for applicants, multiple accounts reported ultimately receiving approval 1-3 days after getting this notice without any further requests for evidence required. As one person reassured: “It’s normal. It has two meanings: 1) It is approved and 2) It is approved. So don’t worry, you are all safe.”

Of course, the notice could potentially presage another RFE or even a denial in some cases. But the overall consensus was that for most H-1B applicants working with competent immigration lawyers, this notice is simply a forewarning that the premium timeline will be slightly delayed before an approval decision.

Maintaining open communication with your legal representatives is advisable. But try not to panic if you encounter this “premium processing clock stopped” message – it may simply mean your approval could be crossing the finish line in a matter of days.

Frequently Asked Questions

Navigating the complexities of the H-1B visa process, particularly when faced with a Request for Evidence (RFE), can be daunting. To help clarify your path, here are clear, specific answers to some common queries concerning RFEs.

What is the usual processing time for an H-1B visa after receiving an RFE?

After you receive an RFE for your H-1B visa, the processing time can vary. Once USCIS has received your response to the RFE, standard processing can take about 60 to 90 days. However, timelines can fluctuate based on USCIS workload.

What are some common reasons for an RFE in H-1B visa applications?

Common reasons for an RFE in H-1B visa applications include insufficient evidence of a specialty occupation, lack of proof of the beneficiary’s qualifications, and inadequate documentation demonstrating employer-employee relationship.

Can premium processing affect the outcome or speed up the review of an H-1B RFE?

Premium processing will not affect the outcome of your H-1B RFE review but will expedite the decision process. Typically, USCIS will respond within 15 calendar days of receiving the premium processing RFE response.

What are typical examples of evidence requested in an H-1B RFE?

Examples of evidence requested in an H-1B RFE often include detailed job descriptions, proof of a degree or certifications pertinent to the specialty occupation, and documentation of previous work experience.

How does an RFE impact the extension of an H-1B visa?

An RFE can delay the extension of your H-1B visa, as USCIS will not make a decision until it has received and reviewed all the submitted evidence. Ensure to respond promptly and thoroughly to avoid further delays.

What are the implications of an RFE on H-1B visa maintenance of status?

Receiving an RFE can have implications on your visa status maintenance. If your status is about to expire, attend to the RFE without delay to avoid gaps in your legal status. Submitting a comprehensive response in a timely manner is crucial to maintaining your status while your RFE is processed.

Frank Gogol

I’m a firm believer that information is the key to financial freedom. On the Stilt Blog, I write about the complex topics — like finance, immigration, and technology — to help immigrants make the most of their lives in the U.S. Our content and brand have been featured in Forbes, TechCrunch, VentureBeat, and more.

See author's posts