Posted March 29, 2019 - Vineesha Kakarlapudi
The Cap season is here! Are you busy filing H-1B petitions? Be careful! A small mistake in filing the petition may lead to an RFE.
Here are the top 10 reasons as per the USCIS for issuing an RFE in the FY 2018. These will guide you in filing the petitions and help you in avoiding getting an RFE.
As an employer, you have to file an H-1B petition for a non-immigrant employee. If in case you haven’t submitted all the required information while filing the petition, USCIS may deny your petition. Else, it may rather issue you a Request For Evidence(RFE)/ Notice Of Intent to Deny (NOID) requesting you the evidence. A deadline will be specified in the RFE, which will not be more than twelve weeks. You should submit all the evidence requested by the USCIS within this specified time.
However, a petitioner should remember that an RFE doesn’t mean denial. Consider this as a final opportunity to get your petition approved.
These are the top 10 reasons why RFEs were issued in the FY 2018
The foremost important criteria for filing an H-1B is that the job specified in the petition should be a specialty occupation. USCIS may issue an RFE if the employer failed to establish that the mentioned job requirement is a specialty occupation. It should be as defined in section 214(i)(1) of the Act and 8 CFR 214.2 (h)(4)(ii) and/or that it meets at least one of the four criteria in 8 CFR 214.2(h)(4)(iii).
Specialty occupation means an occupation which requires theoretical and practical application of a body of highly specialized knowledge in fields of human endeavor including, but not limited to, architecture, engineering, mathematics, physical sciences, social sciences, medicine and health, education, business specialties, accounting, law, theology, and the arts, and which requires the attainment of a bachelor’s degree or higher in a specific specialty, or its equivalent, as a minimum for entry into the occupation in the United States.
Criteria for H-1B petitions involving a specialty occupation
(A) Standards for specialty occupation position. To qualify as a specialty occupation, the position must meet one of the following criteria:
(1) A baccalaureate or higher degree or its equivalent is normally the minimum requirement for entry into the particular position;
(2) The degree requirement is common to the industry in parallel positions among similar organizations or, in the alternative, an employer may show that its particular position is so complex or unique that it can be performed only by an individual with a degree;
(3) The employer normally requires a degree or its equivalent for the position; or
(4) The nature of the specific duties are so specialized and complex that knowledge required to perform the duties is usually associated with the attainment of a baccalaureate or higher degree.
Establishing the Employer-Employee relationship is most important to understand the direct supervision of an employer on the H-1B employee. It should state that the employer may hire, pay, fire, supervise, or otherwise control the work of the employee. It should also state “how the employer will manage the supervision if the employee is working in the same/client location?”. So, it is the responsibility of the petitioner to submit the right to control documents to provide evidence of supervision. This is to establish that the employer has the right to control over the corresponding beneficiary’s work. Failing to establish this Employer-Employee relationship may result in an RFE
The petitioner hasn’t mentioned about the work available for the employee in the specified specialty occupation. This doesn’t establish any qualifying assignments to be performed by the beneficiary for the time requested in the petition. This creates uncertainty in the beneficiary’s work, which may result in an RFE.
It is important to Specify the qualifications of the beneficiary and establish that the beneficiary is eligible for the job as per 8 CFR 214.2(h)(4)(iii)(C). Having a Bachelor’s degree or higher or an equivalent is the minimum qualifying criteria for a specialty occupation. If the petitioner failed to do so, an RFE can be issued requesting the beneficiary qualification details.
An employer filing the petition for a status change should provide all the documents related to the current status. This is to provide evidence that the beneficiary has maintained their current status properly. Failure in doing so may result in an RFE. This category is reflective of many different reasons that status may not have been maintained.
The petitioner hasn’t mentioned about the work available for the employee in the specified specialty occupation. So, there aren’t any qualifying assignments for the beneficiary for the entire time.
For filing an H-1B, the petitioner should first file an LCA with the DOL and get it certified. And the petitioner should attach this LCA with the H-1B petition. In some cases, the petitioner may fail to provide the certified LCA. Else, the provided LCA is not related to the job specified or the terms specified in the job. USCIS may issue an RFE in such cases.
The petitioner has filed for an H-1B extension, but failed to show that the beneficiary was eligible for AC21 benefits. In this case, the petitioner failed to prove the eligibility of the employee, hence being the reason for receiving an RFE.
If the beneficiary has to perform services in multiple locations, then the petitioner must submit an itinerary along with the petition. This itinerary should include all the dates and locations where the corresponding employee will work. USCIS may issue an RFE if the petitioner failed to meet these itinerary requirements according to 8 CFR 214.2(h)(2)(i)(B).
The petitioner hasn’t provided the required evidence to state that they paid all the required H-1B filing fees. Lack of this evidence may result in an RFE.
So, this is how USCIS evaluates your H-1B petition before issuing an RFE. Hope the reasons will help you in filing your petitions more carefully with all the needed documentation, particularly in case of Specialty Occupation, which is a notorious issue for the organizations.
Have your organization received an RFE? Let us know what reason had made you receive one.