An RFE is a letter that USCIS sends to you if you filed an I-129 transfer petition and they request additional information before making a decision on whether or not to approve your case.
They will need proof of several things, such as the petitioner (company) has made the required offer of employment, the job offered matches what was stated in your original petition, your occupation qualifies as a specialty occupation, your prevailing wage meets the minimum requirement USCIS receives your petition at least 15 days prior to your start date.
When individuals receive an R H-1B transfer RFE in the mail, their first reaction is often to panic. While this may be a common response, an H-1B transfer RFE (Request for Evidence) is merely a request on behalf of the USCIS for additional proof before an H-1B approval or denial.
With that being said, it should be completed in its entirety and checked by a professional to ensure the best possible outcome.
H -1B Transfer Petition
An H-1B visa grants foreign workers the ability to work in the US. As long as the visa is valid, you are free to change your company any number of times. In order to do this, you will have to request a transfer of your H-1B visa. This is not required if you shift to a different role for the same employer.
Before filing a transfer petition, you need to make sure that your new job still amounts to a specialty occupation. In order to request an H-1B transfer, your new employer will have to get your Labor Condition Application and file Form I-129, Petition for Nonimmigrant Worker along with the fees.
If the USCIS determines that there is missing evidence or documentation or the evidence provided raises some questions, it will send an RFE.
Keep in mind that if you work for two companies, both the employer companies can file a transfer petition. Further, the transfer petitions are not subjected to the visa cap unless you are transferring from a cap-exempt employer to a cap-subject employer.
Types of RFEs
H-1B transfer RFE notice can be of various types. This depends on the missing information in your transfer application. Here are some of the common types of RFE notices:
1#Proof of an employer/employee relationship
You will have to establish that there is an employer employee relationship. This will require sharing the original contract with the relevant terms and conditions guiding your valid employer employee relationship. In the absence of that, you can provide an overview of your work.
2#Proof of degree equivalency
You must prove that your degree is equivalent to a United States bachelor’s degree or higher. This may require uploading documentation (degree audit report) from your university/college. You can get this report for free from the National Student Clearinghouse.
3#Proof that your degree is in a specialty occupation
This requires uploading proof of your degree, transcripts, and other academic records proving that you have majored/focused on a specialty occupation.
Required evidence showing the beneficiary has work experience in the same or similar field. If you are lacking work experience, then you should provide an explanation as to why your degree is equivalent to two years of experience.
4#Requests for initial evidence showing the beneficiary has the minimum educational requirements for the job
This type of RFE will require that you provide transcripts/degrees/certification documents proving that you have majored in a specialty occupation. You may also need to upload letters from professors or supervisors describing your employment history.
5#Proof that your current employer is petitioning for you
Your employer will need to submit a letter(s) explaining the role you are performing, how long it’s been since they hired/retained you, and other general information about how your contracts with them are managed.
6#Proof that you work the number of hours required on your job offer
The H-1B requires that you work 40 hours a week, and 2080 hours in a year (this equates to approximately 60 hours per week). If they request proof that you meet the requirements of working the amount of time stated in your employment contract, then you will need to upload letters/emails from managers/HR regarding your employment contracts and pay stubs showing how many hours you worked during each pay period.
Tips for Handling an H1B Transfer RFE
Responding to an RFE can seem like a daunting task. It is extremely important that you carefully consider your response and plan for it. Here are some of the tips that you should keep in mind while responding to an RFE:
- When writing your response to an RFE, be mindful of required documentation and requested evidence. Ensure that the required documents are included with your response or uploaded as an attachment. You should also upload any additional information/evidence that may not have been requested but could assist in the review process. There is no need to re-include documents that are already contained within your transfer packet if they were already submitted during the previous H1B filing period/transfer application.
- It is important that you use clear language when providing explanations throughout your response letter(s). A poorly written letter will not do much good for your case, so take time to edit it multiple times before submitting it for review by USCIS.
- Submit your response as soon as possible since the processing times for H1B transfer cases are longer than new applications. If you are waiting on an RFE before submitting your case, you should include the date of when USCIS received your transfer application in order to make it easier for them to process without delay.
- Answer every issue raised in the RFE. In case you miss answering the queries, the chance is that your request will be denied.
How to Avoid Receiving an RFE?
If your employer is yet to submit the transfer petition, there are some steps that can be taken to avoid an RFE. It’s extremely important that you do everything in your power to send a complete petition to avoid the unnecessary delay and stress that comes with an RFE.
Here are some of the steps that you can take the following steps the minimize the chances of receiving an RFE:
- Submit all the relevant supporting documents to establish a bona fide employer employee relationship.
- Make sure you include all the important information about the employee’s job duties.
- Choose an experienced immigration attorney who can help in drafting your H1B petition letter to avoid receiving unnecessary RFEs.
- Submit the original contract to establish a job offer.
- Carefully go through USCIS’s terms and conditions for filing transfer petitions and understand the best practices to follow.
H-1B Transfer RFE Frequently Asked Questions
Q: What should I do if there is a mistake in my Form I-129?
A: If you realize the mistake after filing, but before the H1B transfer request is submitted to USCIS, then you need to inform either your employer or the immigration lawyer who filed it for you. Every case is different and you should not take any decisions without help of an experienced attorney.
Q: How much time do I have for responding to an RFE?
A: The RFE letter by USCIS will indicate the amount of time you get for responding. In general, the time will be from somewhere between 30 to 90 days.
Q Why was my I-129 request for transfer denied?
A: A few things could cause a denial, such as, your occupation and job duties do not qualify as specialty occupation You did not meet the minimum salary requirement for H1B workers Your previous employer’s business is no longer active (closed) The petitioner of your case either had willful misrepresentations of facts or an intent to deceive USCIS.
Q: What happens if my petition is denied?
A: You should appeal an unfavorable decision by submitting Form I-290B within 30 days from when your company received notice of the denial.
Q: Can I request premium processing?
A: Yes, you can request premium processing of the transfer petition by submitting an extra fee of $1,225. This will bring down the processing time to 15 days. The request for premium processing must be made in writing and should be included with the petition.
Q: I received an RFE, but my current employer did not submit a transfer application after receiving it. Can I use their old applications to answer the questions?
A: No. You cannot use your old company’s H1B petitions if the company has not submitted a new I-129 petition. Your employer should file an entirely new transfer petition based on the current situation.
Q: What if my questions are not answered in the RFE?
A: If you have satisfied all the terms of the RFE, then you do not need to worry about that. However, you should always ask your employer or immigration attorney to explain any item that is confusing.
Q: My spouse and children are also in the US on H-4 status. Will they be transferred with me?
A: No, they will not be transferred together. They can file their own transfer petitions separately for their applicable visa classifications.
How Can Herman Legal Group Help?
Replying to a Request for Evidence without relevant experience in immigration law is a tough task. While you might be tempted to give it shot on your own, it is extremely risky and will have a huge impact on your life. Due to this, you should hire an immigration attorney who can file a reply on your behalf such that your request is approved.
At Herman Legal Group, we regularly work with clients to file a response for an RFE. Our experts have handled thousands of H-1B transfer petitions and know how to get approval. Get in touch with us today to see how we can help you.