Understanding the most common types of requests for evidence and why they are issued can help employers respond decisively
H-1B petitions require a significant amount of work from both the sponsoring employer and the employee. U.S. Citizenship and Immigration Services (USCIS) closely scrutinizes submitted petitions such that we have seen a higher rate of requests for evidence (RFEs) issued over the last four years. With rates remaining consistently high, it's important that employers understand why RFEs are issued and how to respond to avoid any additional delays in processing that could keep employees from starting work on schedule.
Four common reasons for requests for evidence on H-1B petitions
Specialty Occupation
USCIS may issue this type of RFE if the adjudicating officer deems the initial evidence submitted with the petition as insufficient proof that the role offered to a foreign national qualifies as a specialty occupation under the H-1B program. USCIS defines a specialty occupation as a role that requires at least a bachelor's degree in a specific field (such as computer sciences or engineering). Employers can respond to this RFE by providing detailed, daily and duty-focused job descriptions and how they align with the specific degree requirements.
Employer-Employee Relationship
This type of RFE is typically issued when an employer is placing an H-1B employee at a third party work site or client office. USCIS requires sponsoring employers to maintain the ability and right to control how, when and where the sponsored employee performs the job. Employers can prove that an employer-employee relationship exists by providing copies of signed client contracts as well as detailed work assignments and expected deliverables for the employee.
A recent lawsuit and settlement with USCIS from earlier this year prevents the agency from issuing this type of RFE at the moment. However, if new regulations are implemented, it may reemerge.
Beneficiary Qualifications
USCIS may issue this type of RFE if the adjudicating officer deems the initial evidence submitted with the petition as insufficient proof that the H-1B sponsored employee is qualified for the job in question or has the minimum education required. In this instance, USCIS may issue an RFE requesting additional proof that the employee's degree is related to the position offered.
Maintenance of Status
USCIS typically issues this type of RFE to H-1B petitioning employers when the sponsored employee is working pursuant to Curriculum Practical Training (CPT) while in F-1 student status. Employers can typically resolve this issue by providing USCIS with evidence proving the sponsored employee was eligible for CPT and lawfully maintained their nonimmigrant status.
Originally published 3 December 2020
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