Imagine you are eagerly waiting for a decision on your H 1b visa application, and all you receive from the USCIS is an RFE. Do not get confused; it is not a new thing. In the normal processing of visa cases, the USCIS uses RFE to request additional information when it is not able to determine the outcome of the case from existing information.
This article will provide you insight on RFE issued while processing an H 1b visa, what is the common information asked in RFEs for an H 1b visa, and how to answer an H 1b RFE.
What is an RFE?
A Request for Evidence (RFE) is a notice issued by the United States Citizenship and Immigration Services (USCIS) to the applicant of the visa in question, requesting additional evidence in the form of documents or otherwise to make a final decision on the beneficiary’s case.
An RFE is generally issued when the adjudicator of the visa case is not able to determine the outcome of the petition because of a lack of evidence or the lack of information provided in the original petition. The RFEs can be taken as a second chance for the applicant to get his case approved.
For example: If in the case of H 1b visa the adjudicator of the case finds a lack of employer-employee relationship between the beneficiary and the sponsoring employer, he may deny the successful approval of the case, and the employer may have to file a new petition again.
However, instead, if the adjudicating officer decides to send an RFE for additional evidence, such as proof of H 1b specialty occupation, you have a chance to submit further evidence to get approval on your case.
What information does USCIS ask in an H 1B RFE?
The foreign workers have to meet certain mandatory requirements to get their H 1b visa approved. USCIS will be interested in seeing that you have met all the criteria before approving your visa petition. The common H 1b RFEs are:
- Determination of specialty occupation.
- Proof of employer-employee relationship.
- Proof that your education meets the H 1b criteria. For example – You have a relevant US bachelor’s degree or its foreign equivalent in the area, you have an H 1b job offer letter.
- LCA not submitted
- The applicant’s place of residence is very far from the place of work
USCIS may send an H1b RFE for other information that it may think would be relevant to your case. You should be ready to answer all the inquiries if you receive an RFE requesting information.
H 1b job relates to specialty occupation.
The adjudicator has to make sure that you are a qualified worker in a specialty occupation job. The determination of the criteria is left in the judgment of the adjudicating officer who will analyze your education, such as your bachelor’s degree.
This is because H-1b visas are granted to such occupations which require the application of highly specialized knowledge, both theoretical and practical. The position is so complex that a bachelor’s degree is required to work in such a position.
For example – The position of an Information Technology engineer in a small company is likely to qualify as a specialty occupation instead of a position of a waiter in a successful restaurant chain.
However, only applying for the position may not be enough, and you have to make sure that you remove all areas of doubt that your job may not relate to your specialty occupation. You can submit proof such as
- Detailed job description, the
- Employees’ duties in the company and how they will apply the specialized knowledge.
- Other supporting documents
You should not assume that the USCIS will give you any benefit of the doubt and submit documents in consultation with a specialized immigration attorney.
Proof of employer-employee relationship
The USCIS adjudicating officer will check if there is qualifying employer-employee relationship exists in the particular H1b case. There may exist some questionable relationships which make it hard for the adjudicating officer to determine the outcome of the case.
For example: When the employee is working off-site location, the USCIS officer will be interested in proper clarification about how the employer will control the employee. Therefore, through an RFE, the USCIS may ask for clarification if insufficient clarification was submitted before. Furthermore, supporting documents may be requested to prove whether the specialty occupation can be performed off-site.
In cases of self-sponsorship, the USCIS scrutinizes the application more to avoid fraud. USCIS may ask for additional evidence that your employer has a right to hire, fire, and control your employment if you have a big ownership stake in the sponsoring company.
If your business enterprise in your home country has a branch in the US and is sponsoring your H 1b petition, you can submit past pay statements, wage reports, past employment letters, etc., as proof of your valid employer-employee relationship.
Proof that your education meets h1b criteria
The H1b visa requirement is that your bachelor’s degree relates to the proposed H1b job. If the USCIS cannot relate your education to the proposed H1b job, it may be likely to issue an RFE to request information about how your education relates to the position.
Furthermore, the H1b visa requires at least a US bachelor’s degree or its foreign degree equivalent. If USCIS is not satisfied with your submitted evidence, it may request more evidence to prove your credentials equivalent to obtaining a degree from the US.
Labor condition Application not submitted or incorrectly submitted.
While one of the mandatory requirements for an H1b visa is to submit a certified LCA from the Department of Labor with your visa petition, if your sponsor fails to get a certified LCA, the USCIS will either reject your petition or ask for LCA in the form of RFE.
After receiving an RFE for LCA, your employer has to get it from DOL. LCA is basically a declaration by the employer regarding the terms of employment, a notice of H1b hiring, etc.
If your place of residence is very far from the place of work
If your place of residence or intended place of residence is far from your place of work, the adjudicating officer will satisfy himself with how you will operate from such a distance. Not likely that USCIS may ask you for an explanation if your commute difference is moderate; however, say if you live in a different city or in a very far place which a rational person will not live if they have to commute daily to work.
USCIS expects that the place of residence of an H1b employee and the place of work must be within a reasonable commute distance. You may provide a reasonable explanation to answer such a query.
For example: If you are living in a far place for a temporary period and are enquiring to agents for a place near work, you can show evidence such as email conversations.
How much time do I have to respond to an RFE?
We know the panic created in the minds of the beneficiary when they receive an RFE. The very first thing we advise our clients is to remain calm and respond to everything in RFE thoroughly.
Usually, we recommend you respond to your RFE at the earliest by taking advice from an experienced immigration attorney. You should respond to RFE no later than 12 weeks. USCIS would reject your visa case if you failed to respond to RFE in a timely manner.
Herman Legal Group helps their client in responding to RFEs. We make sure to take good care of your case and respond to RFE thoroughly, answering all the inquiries necessary to determine your case. There is a strong possibility that your case may be delayed or rejected if the information provided by you is insufficient. Consult our immigration attorney, who can decide the best course of action on your case.
How should I respond to an RFE?
If you receive an RFE, we recommend you to consider taking advice from an immigration attorney. It minimizes your risk of getting your H1b petition denied by the USCIS. Usually, you have three options available to you when you receive an RFE.
Responding in full
If you have sufficient documentation to respond to your RFE answering all the inquiries thoroughly, nothing can be better than such a situation. As an immigration expert, we recommend submitting supporting evidence (if available) along with your primary evidence so that you answer each inquiry without leaving areas of doubt.
For example: If the USCIS adjudicating officer sends your an RFE for two things:
- Insufficient existing employer-employee relationship evidence
- LCA is missing
In response to a first inquiry, you can show evidence such as a job offer letter, terms, and conditions of the job, your job duties, the right of the employer to terminate you, proposed salary, etc., to prove a valid employer employee relationship.
In response to the second inquiry, you have to submit an approved LCA from DOL.
You are responding in full by answering all the inquiries.
Partial Response
Partial responding to an RFE happens when you do not have sufficient proof to answer all the USCIS inquiries. However, you can answer some of the inquiries through appropriate documents.
You can submit some of the documents which are in your hand and leave the fate of your case decision in the hands of USCIS. If USCIS believes that your case should be approved, it will approve your H1b visa; however, if not, unfortunately, your visa case will be denied.
Withdraw your application
The last option is that if you figure out that you may not be able to locate evidence that USCIS has asked you or locate it insufficient time, and USCIS will deny your petition, you can withdraw your application and again submit it when you have sufficient pieces of evidence.
Advice from Herman Legal Group while answering an RFE
- You should try to answer the RFE in full wherever possible and partial responses.
- If you do not understand any specific part of RFE, consult an attorney for clarification.
- RFE does not mean that your case is about to get denied; it is a form of additional evidence requested by USCIS. You do not need to get panic.
- Make sure to answer RFE in time. Do not delay your response because of negligence.
- Furthermore, keep it also in mind to not answer the RFE in a rash manner. We have seen cases where the applicant has answered the notice without gathering sufficient evidence and later get their H 1b case denied because of lack of sufficient evidence.
- Always make sure to answer the RFE in full and not in parts. USCIS does not expect to receive another response from you after receiving the first one, and it will make its decision based on your first response.
- Some documents may need time if you have to request them from authorities or employers. So make sure to start at the earliest you receive your RFE.
- Double-check all the documents you are submitting. Make a checklist, and be sure to tick all the boxes.
- We recommend using a cover letter to outline all the documents you have provided as evidence.
- Double-check the mailing address you will be sending your response as that can be different from the address used for previous correspondence.
How can Herman Legal Group help you?
Herman Legal Group provides a wide range of immigration services, including helping clients to get their successful h 1B approval. If you receive an RFE and are concerned about responding to that, you can have a quick chat with one of our immigration attorneys to ease your burden.
We provide both offline and online consultation services, so you can connect with us from any part of the world. We wish you all the best with your visa application.
