Background:

Latest USCIS Data show that the RFE and denial rates still remained significantly high for key employer-sponsored non-immigrant categories in the First Quarter of 2020. There is a difference between denial and RFE. We will talk about H-1B RFEs, Denials, and the available options after denials in this blog.

What is an H-1B RFE?

RFE is a short form for Request For Evidence. It is an inquiry by the USCIS in order to request additional proof/documents necessary to make a decision pertaining to your pending H-1B case. You will receive the RFR request in the mail, you can also use Online Case Status

This information can be regarding:

The petitioner
Beneficiary
Or both, as the USCIS must see sufficient proof of an employer-employee relationship
You have 90 days to submit the appropriate documents, from the day you receive your RFE
You should ensure, answering all inquiries
Otherwise, you run the risk of delaying your case further or including information that may harm the outcome

How does USCIS Confirm Information Regarding the Petitioning Employer?

The USCIS uses a tool known as the Validation Instrument for Business Enterprises (VIBE)
VIBE uses the commercially available information to confirm the details about the petitioning employer
Hence, it is important to have accurate information about your employer too, even in social media
You may receive an RFE requesting information such as request for the employer’s Federal Tax ID Number, wage reports, lease agreement, financial statements, etc.
These are often due to recent change of address, or various other mismatched information between VIBE system and H1B petition

The most Common H-1B RFE reasons are:

1. 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 approval of a “specialty occupation” typically comes down to the judgment of the adjudicating officer
The officer might ask for additional paperwork such as the beneficiary’s experience, Job description, proposed salary, and whether or not a Bachelor’s degree is actually a requirement for the job

2. Petitions Filed on Behalf of Businesses for Professionals not Typically Associated in that Field

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 analyst for a construction business.
The employer needs to exhibit is that the beneficiary will be performing a role in a ‘specialty occupation’

3. Degree in a Separate Field of Study

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
If the beneficiary 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.

4. Employer-Employee Relationship

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. There might be additional reasons for RFE, such as:

1. LCA Issues

The H-1B Labor Condition Application (LCA) is an important part of your H-1B petition
If your employer skipped it, forgot to include it, or there is an issue in the one that was submitted, you will most likely receive an H-1B RFE from the USCIS
The purpose of the LCA is to establish that the terms and conditions of the employment meet the H-1B requirements

2. Location Far Away from Office

You may also receive an H-1B RFE if you live in a place that is relatively far away from your office
This is a very recent trend in RFE, where the beneficiary has been asked to provide reasons for living far from their workplace
It should be a reasonable commute
This RFE can be resolved by providing a justifiable reason for living at a particular distance

3. AC21 and Six Years Limit

You may receive an RFE concerning the AC21 and the six-year-limit if your employer failed to establish that you are eligible for AC21 benefits or eligible for an H-1B extension
This can happen if it appears that you have reached your six-years limit on your H-1B.

If both the labor certification and I-140 have been approved but there is no available green card currently for the H-1B employee, you are eligible for extension beyond six years.

Your employer should include copies of the approved labor certifications and/or I-140 to prove your eligibility for an extension
Your employer should also provide your trip itineraries as well as entry and exit stamps to recapture the time you spent outside the United States

Multiple OPT/CPT

If you have had optional practical training (OPT) or curricular practical training (CPT) during your F-1 status, you may receive an RFE from the USCIS, especially if you had OPT or CPT more than once at each level of your education
For example, if you had CPT or OPT when doing your bachelor’s degree, you can only use it again when you get to the master’s level
If your petition reflects the use of any of these twice, you may get an H-1B RFE
For instance, you may get an RFE if you have two master’s degrees, and you used either OPT or CPT during each of the master’s programs

RFE Response: Best Practices:

Look at whether USCIS accurately states the law.

If not, you must point this out in your responses.

2. Did USCIS apply the right legal standard?

Did USCIS ignored/mischaracterized the initial evidence
In your response:
1. Provide a roadmap, including how the law applies to facts
2. Be concise and clear
3. Respond to each issue raised in the RFE (if already provided the information in the initial filing, point that out and include it again-remember, you are building your record for potential appeal/litigation)
4. Any new evidence?
5. Expert opinion?

SPECIAL NOTE:

Recent Court Decisions that Might Help with your Initial filing, RFE Response, Appeal or Litigation:

USCIS-IT Serve Alliance Settlement: invalidates the Itinerary and contract memo.
INSPECTIONXPERT CORPORATION vs. KENNETH T. CUCCINELLI: rejected the USCIS assertion that it had the right to deny an H-1B petition because the position did not require a degree in a specific subspecialty and could be filled by someone with a degree in more than one discipline, such as different types of engineering degrees.
CARE vs. KIRSTJEN M. NIELSEN: the court held that Impact Data Analyst is a specialty occupation

As mentioned before, RFE is only a request for more information it is neither denial nor approval.

What if your H-1B is Denied?

You have three options:

1. Motion to Reopen/Appeal:

A motion to reopen must state new facts and be supported by documentary evidence (available at the time of filing)
A motion to reconsider must establish that the USCIS based its decision on an incorrect application of law or policy and that the decision was incorrect based on the evidence in the record of proceedings at the time of the decision

Note: Motions to Reopen/reconsider go back to the same officer who issued the denial. An appeal is a request to a different authority to review an unfavorable decision (AAO-Administrative Appeals Office).

Considerations:

Processing Times: generally, up to 180 days but most of the time it takes a year. Only half of the cases are completed within 180 days
During the appeal process: your status is not extended
If the I-94 is not current, you will start to accrue unlawful presence the day the H-1B is denied
Rate of success: between 6%-7%
Cost: USCIS fee: $675, in addition to the applicable attorney fee

Note: You are asking the same officer who denied your initial H-1B to change his mind. If you appeal, you are asking the same government body to overturn one of their own’s decisions.

2. File a Federal Litigation Lawsuit

What is Federal Litigation in the Immigration context?

Ask a federal judge to determine whether the USCIS applied the law correctly when it issued the denial. (Taking the case outside the USCIS and ask the court to make a decision)
Given the increased number of H-1B denials, this has become a viable option for some cases

Process:

You do not need to file an appeal/motion to reopen before you fila formal lawsuit
Once the lawsuit is filed, and all the parties are served, (USCIS, DOJ, DHS, Attorney’s Office), they have 60 days to respond to the complaint
In many (strong) cases USCIS will reopen the case, issue another RFE, and approve the case (settle)
Or, USCIS might decide to continue with the lawsuit until the end

Considerations

If you have a strong case and strong administrative record, you might be able to go through the process in less than six months and get a favorable decision. Of course, it could take longer, if USCIS decides to litigate until the end.
Timing and Status:
1. I-94 current
2. I-94 expired: you do not have status while waiting for the case to go through the court. However, we can request the court to order the USCIS to keep your status quo (you can stay in the US and continue working) while the case is pending. This is a huge benefit for litigating an H-1B denial in federal court. Not applicable in every case
Cost: It is more expensive than an appeal but if you have a good case ripe for litigation, it might be worth it

3. Preparing the Administrative Record

The court cannot look at anything outside the administrative record (your initial H-1B filing, subsequent RFE responses and an appeal (if you filed one)
At the time of filing, did you file a complete H-1B Packet?
1. Detailed Job description?
2. Specialty Occupation?
3. Expert Opinion Letters (often USCIS ignores them in their denial but the court really pays attention)
4. LCA and wage Level (I/II/III/IV) (USCIS issued a memo 2 years ago instructing officers to look into the wage levels and pretty much deny Level I petitions)
5. 3-rd party placement: employer-employee relationship issues

NOTE: USCIS-IT Serve Alliance Settlement: The USCIS-IT Serve Alliance settlement contains several elements. First, USCIS is required to rescind “in its entirety within 90 days” the 2018 Contract and Itinerary Memorandum (if you have an H-1B denied as it related to the 2018 Contract and Itinerary Memorandum under this grounds, you can now go to court and have your denial overturned).

RFE and Denials are complex processes, it might make or break your chances to keep your job, and status. Hence, it’s highly recommended to navigate the process with the help of a specialized immigration attorney.

Give us a call at 469-994-9407

How To Handle H-1B RFEs and Denials?