What can I do after receiving H1B RFE? Common Reasons and Solutions

People often get excited when they receive the news that they have won the H1B lottery. Recently, students who won the lottery in April have received updates on their H1B application results. Some are happy while others are sad. Some have passed smoothly and are happily waiting for the activation of H1B in October, while others may receive RFE (Request for Evidence) notices, which rekindles anxiety and uncertainty.

An RFE is issued when the USCIS finds the initial application lacking in some way. While getting an RFE can feel like a big setback, it's important to remember it’s not a denial. It’s a chance to provide more information and possibly get your H1B approved.

Understanding Common H1B RFEs

1. Specialty Occupation USCIS checks if the job fits the “Specialty Occupation” category, which is required for H1B approval. They look at:

• The job description in the Occupational Outlook Handbook (OOH).
• Whether the job is complex and needs a higher education degree.
• What other companies in the industry require for similar positions.
• Your company's past requirements for the role.

What to do: Read the RFE notice carefully to understand USCIS's concerns. Provide evidence to address these concerns. Expert opinion letters from industry professionals can be very helpful.

2. Employer-Employee Relationship USCIS wants to make sure there is a real employer-employee relationship, especially for remote or third-party work. H1B employees must be supervised and controlled by their H1B employer.

What to do: Provide labor contracts and evidence showing the employer's supervision and control over your work.

3. Availability of Work (Off-site) If you work off-site, especially for IT consulting firms, you might get an RFE about whether there’s enough work for the full three-year H1B term.

What to do: Work with an experienced H1B attorney to gather evidence showing long-term work plans and third-party contracts.

4. Beneficiary Qualifications This RFE questions whether you have the right qualifications for the job.

What to do: Highlight your educational background and professional experience, especially parts relevant to the job.

5. Maintenance of Status F-1 students using CPT might get RFEs questioning their legal status.

What to do: Provide documentation proving continuous legal status and adherence to visa regulations.

6. Availability of Work (On-site) USCIS might doubt if the position is really needed within the company, especially for small businesses.

What to do: Provide the company’s business plans, evidence of similar positions within the company, and details of ongoing projects.

7. LCA Correspondence to Petition Discrepancies between the Labor Condition Application (LCA) and the petition can trigger RFEs.

What to do: Explain and clarify any inconsistencies in your submission to USCIS.

8. AC21 and Six-Year Limit This RFE is about H1B extension requests after six years in H1B status.

What to do: Provide proof of filing PERM or I-140 within the specified timeframes or evidence of approved I-140 awaiting visa availability.

9. Itinerary for Third-Party Placements Strict itineraries are required for employees working at multiple sites.

What to do: Provide detailed itineraries, including dates and locations of service.

10. Application Fee Errors Errors in application fees, like incorrect amounts or missing signatures, can lead to RFEs or direct rejections.

What to do: Follow USCIS instructions carefully to correct any fee-related issues.

Conclusion

Responding to an H1B RFE can be complicated and requires careful preparation. Even small mistakes can jeopardize your application. It’s a good idea to consult with specialized immigration attorneys to ensure your response is thorough and accurate, increasing your chances of getting the H1B visa approved.