Master the H-1B RFE Challenge: Strategies to Outrank the RFE

I. Introduction to H-1B RFEs

A. Explanation of RFE and its significance in H-1B petitions

An RFE issued by the USCIS is not a denial but a request for additional information to make an informed decision on an H-1B petition. It's a crucial step in the H-1B visa application process, indicating that while the application is not denied, there's some information missing or unclear.

B. Importance of responding to an RFE

Responding to a Request for Evidence (RFE) from the U.S. Citizenship and Immigration Services (USCIS) is crucial to the H-1B petition process. An RFE is a form of communication between the USCIS and a petitioner where the USCIS asks for additional information necessary to judge a petition. This tool allows USCIS to fill in any missing documentation, clarify any confusion, and correct discrepancies. A well-structured response to an RFE can significantly influence the outcome of the H-1B petition. Responding by the deadline is vital, typically between 30 and 90 days. Failure to respond by the deadline will likely result in denial. Moreover, once an RFE is issued, all work on a case is halted, emphasizing the importance of a prompt response.

II. Understanding H-1B RFEs

A. Conditions under which USCIS may deny a benefit request or request additional evidence

USCIS might issue an RFE for various reasons:

• Insufficient evidence to determine eligibility.

• The job doesn't seem to qualify as a Specialty Occupation.

• Questions about the Employer-Employee Relationship.

B. Insights into the probability of receiving an RFE for an H-1B petition

Over the past few years, there has been a noticeable uptick in issuing Requests for Evidence (RFEs) for H-1B visa petitions, particularly for IT-related positions. This trend can be attributed to policy shifts under the Trump Administration, which emphasized the "Buy American and Hire American" Executive Order. This order aimed to protect American workers and industries by ensuring that H-1B visas are awarded only to the most skilled or highest-paid beneficiaries. As a result, the U.S. Citizenship and Immigration Services (USCIS) has adopted a more stringent approach to reviewing H-1B petitions.

This has increased scrutiny, especially when determining if a position qualifies as a "specialty occupation." The USCIS policy manual also highlights the importance of providing comprehensive evidence to establish eligibility for the benefit sought. If the evidence is insufficient, USCIS may issue an RFE or even proceed to denial. Given these developments, petitioners must be thorough and meticulous in their submissions, ensuring that all requirements are met and adequately documented.

C. Approval rates for H-1B petitions that have received an RFE

About 60% of H-1B petitions receiving an RFE were historically approved. However, this rate varies based on the nature of the RFE and the quality of the response. For a more detailed data layout, please see the attachment.

D. Response time for an RFE and the importance of meeting the deadline

USCIS typically provides 90 days to respond, with Premium Processing usually taking about 60 days. It's imperative to adhere to this deadline, as late or incomplete responses can lead to denials.

III. Common Reasons/Cause for Day 1 CPT to H-1B RFEs

A. Specialty Occupation:

The crux of numerous RFEs centers around the concept of the specialty occupation. It's the most common, abstract, and challenging reason for an RFE, mainly targeting those from arts, general business, and commerce backgrounds. To qualify for a job as a specialty occupation, one must possess a bachelor's degree that aligns with the job role. Obtaining a bachelor's degree is not hard, but how the US Department of Labor force forsee the alignment is difficult. The U.S. Department of Labor's Occupational Outlook Handbook (OOH) often serves as a reference for job descriptions. The USCIS also considers industry standards and the company's historical requirements for the position.

⭐Solutions: The key is to demonstrate the unique and intricate nature of the job role, emphasizing that the role is indispensable to the company. An effective countermeasure to this RFE is the Expert Opinion Letter, which provides an expert's perspective on why the job qualifies as a "Specialty Occupation."

B. Employer-Employee Relationship:

The USCIS aims to ascertain a genuine employer-employee relationship.

⭐Solutions: This relationship can be established through various documents

1. Employment contracts detailing the terms and conditions of employment.

2. Company onboarding documents.

3. Organizational charts. It's essential to clarify roles and responsibilities through detailed job descriptions, communication logs (emails, chat transcripts), periodic performance reviews, tools/software for task assignments, and tracking.

4. Letters of support can also be pivotal in this context. Employment contracts detailing the terms and conditions of employment.

C. Availability of Work (Off-site):

For those working at client sites or off-site locations, the USCIS mandates additional evidence.

⭐Solutions: This includes client contracts, work orders, and detailed project descriptions. The goal is to prove continued employment in a specialty occupation while maintaining the employer-employee relationship.

D. Beneficiary Qualifications:

The qualifications of the beneficiary are central to the H-1B petition process. It's crucial to provide educational evaluations, primarily if the degree was obtained outside the U.S., to help the USCIS determine the U.S. equivalency of the degree.

⭐Solutions: Work Experience Letters should detail the beneficiary's relevant work experience, emphasizing their expertise in the specialty occupation. Skill Certifications further bolster the beneficiary's qualifications for the position.

E. Maintenance of Status:

This aspect is meticulously scrutinized, especially examining the legality and reasonability of your CPT and subsequent OPT during your F1 visa period. Choosing a reputable school and a legitimate program for your Day 1 CPT is paramount.

⭐Solutions: Established Day-1 CPT universities often equip students with a comprehensive "RFE package" to aid them in substantiating their regular studies and appropriate use of CPT. Beneficiaries must furnish evidence like pay stubs, I-94 records, and employment letters to showcase their adherence to their current visa's terms.

F. Availability of Work (In-house):

For in-house roles, the USCIS demands specific evidence to prove the existence of the necessity of the current occupied position.

⭐Solutions: Detailed project descriptions and financial proofs, to demonstrate the company's capability to sustain the beneficiary's employment.

G. Labor Condition Application (LCA):

The LCA plays a pivotal role in the H-1B process. It must align accurately with the preferred position regarding job title, wage level, and work location. Any inconsistencies between the LCA and the H-1B petition can instigate an RFE.

⭐Solutions: Make up the necessary documents and explain the reasons for the discrepancy to the immigration office, as long as you can justify it.

H. AC21 and Six-Year Limit:

The H-1B visa typically comes with a six-year duration cap. However, exceptions exist. Beneficiaries can pursue extensions under the American Competitiveness in the 21st Century Act (AC21) if they meet specific conditions, such as a pending green card application.

⭐Solutions: Navigating the H-1B extension landscape, the Act delineates two specific conditions under which H-1B employees can prolong their stay beyond the conventional six-year period:

1. When an H-1B employee has a labor certification for an employment-based green card that remains pending for over a year.

2. In situations where both the labor certification and I-140 have garnered approval, yet a green card is currently unattainable for the H-1B employee.

To streamline the process and diminish the likelihood of encountering a Request for Evidence (RFE), it's prudent for employers to incorporate copies of the ratified labor certifications and/or I-140, thereby affirming the employee's extension eligibility. Furthermore, presenting trip itineraries coupled with entry and exit stamps can effectively account for the duration the employee was stationed outside the United States.

IV. CPT Withdrawal during H1B

While studying and working in the United States, many people may face situations where they are considering withdrawing from their program for various reasons during the CPT period. First, let's be clear: As long as you can provide a reasonable explanation for dropping out during CPT, this action will usually not negatively impact your future H1B application.

During the Trump administration, interviews did exist in immigrant career applications, and immigration officers may ask applicants why they chose to discontinue specific programs during their studies. In such scenarios, applicants were required to provide a complete and reasonable explanation for their decision, such as financial stress, health issues, etc. However, the interview component has now been eliminated from the EB visa interview, so most applicants do not need to be interviewed. The immigration officer relies heavily on the documents submitted by the applicant to assess his or her lawful status in the United States.

It is important to note that the professional immigration review usually focuses only on the status of the petitioner's last entry into the U.S. before filing Form I-485. Suppose you were already in H1B status at the time of your previous entry. In that case, likely, the immigration officer will not consider your F1 student status during the CPT period during the review process.

Nonetheless, to ensure a smooth immigration application process in the future, we still recommend that applicants complete the CPT program if it is coming to an end after the H1B is in effect to avoid possible complications. If you have decided to withdraw from the program, it is essential to make sure that the H1B has taken effect and try to avoid withdrawing immediately when the H1B first takes effect. If possible, it's best to wait until the CPT is over or wait a little longer before deciding so that your H1B application will go more smoothly in the future.

V. Alternatives to H1B Lottery Selection

Students with H1b and H-4 EAD, if the USCIS denies the application for an extension of work permit, or if they are unemployed and have not found a job yet, they can choose to change to F-1 status and enroll in the Day-1 CPT program to transition to a new status and to continue to work. Please get in touch with us if you are interested.

VI. Recent Trends in H-1B RFEs

RFE vs. NOID: While an RFE is a request for additional evidence, a Notice of Intent to Deny (NOID) is a more serious determination. Receiving a NOID indicates that USCIS has reviewed your application and found you ineligible for the immigration benefit. It's essential to treat a NOID as an urgent RFE and respond with compelling evidence to avoid a denial.

VII. Conclusion and Next Steps

The H-1B visa process, linked with Day 1 CPT, can be tough to understand. This article explains the main points about H-1B RFEs (Requests for Evidence). An RFE is not a "no" but a "tell me more." It's super important to reply to these RFEs quickly and clearly. Lately, more RFEs are being sent out, especially for IT jobs. The article gives common reasons for getting an RFE and tips on how to handle them. So, while the H-1B process might seem hard, with the right info, it's manageable.

~Register with Us to Secure Your Scholarship~