What's H1B RFE
RFE means “Request for Evidence”, so H1B RFE means USCIS sends the applicant a request for evidence for H1B Case. Receiving H1B RFE does not mean that your H1B application has been denied, it simply means that there are documents or information that are missing. Thus, the adjudication officer sent out the notice so that eligibility can be established for the petition.
Common Reasons for H1B RFE
The USCIS uses a tool known as the Validation Instrument for Business Enterprises (VIBE). What VIBE does is use the information that’s commercially available to confirm information regarding the petitioning employer. Some discrepancies may arise if there is a recent change of address, change of structure or other mismatched information between the VIBE system and H-1B petition. Therefore, you may receive an RFE requesting information like the employer’s Federal Tax ID Number, wage reports, lease agreement, financial statements, etc.
Determination of a specialty occupation- H-1B visas are granted to individuals who are qualified workers in a “specialty occupation”. In order to qualify as such, you will be required to adhere to one of the following requirements: The minimum requirement is typically a bachelor’s degree (or equivalent) for the position. The position may also be so complex that it requires a degree. Other requirements may also apply. While these regulations are pretty much set in stone, the approval of a “specialty occupation” typically comes down to the judgment of the adjudicating officer. They look past the surface and may request paperwork like the beneficiary’s work experience, detailed job description, industry-wide practices, proposed salary, etc.
Petitions filed on behalf of businesses for professionals not typically associated in that field. This point is a bit challenging to explain but it does occur from time-to-time. Basically, an RFE may be requested if a small business is filing an H-1B petition for an alien who possesses skills not commonly associated in that field. For example, a petition for a financial planner filed by a construction business. The USCIS may not see a correlation between the two and be led to believe that the beneficiary will be placed in a position of less capacity and/or find other work when arriving. The major point for the employer to exhibit is that the beneficiary will be performing a role in a ‘specialty occupation’.
Degree in a separate field of study- Cases exist where an individual may have a bachelor’s degree but it may not be in the same field as the proposed position. If that’s the case, the RFE will request an explanation detailing how the degree relates to the position. Likewise, if the worker does not have a bachelor’s degree from the U.S they may need to submit proof of the foreign degree equivalent. Proof of experience may also be required in the form of past employment letters or evaluations from official sources like a college or university.
Questionable employer-employee relationship- As previously mentioned, the USCIS must see that an employer-employee relationship exists in order to approve an H-1B petition. The lines are often blurred when the sponsored worker is anticipated to be working off-site. When that’s the case, an RFE may request information that establishes the employer has the ability and right to control how, when and where the worker performs the job. They must also show the proper documents to prove that the specialty occupation can be performed at that off-site location. Additional documents may include the organizational chart (chain of command).
Requests for an extension or change of status– If an H-1B petition is filed for an extension or change of status, sufficient documentation must be provided to demonstrate the worker has maintained their current status by submitting pay statements.
RFE vs NOID
RFEs are sometimes issued simply because there was a missing document or an error with the information entered into the petition. A Notice of Intent to Deny (or NOID) is a much more serious situation. NOIDs are issued when the officer in charge of evaluating your petition is planning on denying your petition. Because there is a difference between rejection and denial (rejection often happens after a technical error such as omitted information or fee payments; denial usually takes place if you do not merit the visa), a NOID means that the officer does not think that you or your employer are qualified for the H-1B.
NOIDs are issued in order to avoid having petitioners re-file just to encounter the same fundamental problem. However, you can still save your case by presenting evidence or documentation that solves the issues raised in the NOID, much like you would for an RFE.