Common H1B RFE Reasons? – Employer Employee Relationship, Qualifications, Status

In H1B Visa by Guest AuthorUpdated : 145 Comments

As you know, H1B Visa Request for Evidence (RFE) can be very frustrating from everyone perspective as you would need to submit the info and wait for USCIS. It can be very tense moments for employer as well as employee.  This article focuses on the most common RFE reasons (part 2).

Most Common H1B RFE (Request for Evidence) reasons.

As mentioned in first article, below are the six common RFE requests that are given by USCIS.

  1. Validation Instrument for Business Enterprises (VIBE)
  2. Specialty Occupation
  3. Needs of the Petitioner for the Services of the Beneficiary
  4. Beneficiary Qualifications
  5. Employer-Employee Relationship
  6. Maintenance of Status

You should read the first part of this article H1B RFE Reasons? – VIBE, Specialty Occupation, Petitioner Needs, to get information on first three.  This is a continuation of the other article covering the rest.

H1B Petition – Beneficiary Qualifications ?

Not only must the H1B visa related position itself be one that requires at least a bachelor’s degree in a specific field, but the sponsored worker must also possess the required bachelor’s degree. Sometimes, an individual’s education may not be in the exact field, but in a related field instead. Some RFEs may request an explanation and documentation of how the degree is related to the position. Or, where the sponsored worker lacks a U.S. bachelor’s degree, he or she must document that a foreign degree is equivalent to a U.S. bachelor’s degree.

An RFE may request that an education evaluation be submitted, or if an evaluation was submitted, there may be a request for proof that the evaluation was prepared by an official who has authority to grant college-level credit at an accredited college or university with training and/or work experience in the profession. Also, a combination of education and experience may sometimes be used to document the beneficiary’s qualification. USCIS allows three years of professional experience to substitute for each year of college-level training. The adjudicating officer must decide whether the quality of experience is at high enough level to qualify as “professional.” Experience is generally documented through letters from past employers and an RFE may be issued if the experience letters used for the evaluation lack specificity.

Employer-Employee Relationship – Any violation?

Typically in situations where the sponsored worker will work off-site, USCIS will look at a number of factors to determine whether a valid employer-employee relationship exists. In considering whether or not there is a valid “employer-employee relationship” for purposes of H-1B petition adjudication, USCIS must determine if the employer has a sufficient level of control over the employee.

The petitioner may be requested to submit documentation to establish that it has the right to control over when, where, and how the beneficiary performs the job. This issue often arises with businesses in the consulting or staffing industries. In addition to documenting right to control, an employer in the consulting/staffing field must also provide project-related documents to confirm that specialty occupation work is available at the off-site location (usually a client company).

Maintenance of Status – No violation of Status ?

Any time an H-1B petition requests an extension of status or change of status, the sponsored worker must document that he or she has properly maintained the current status. Read H1B Visa vs. Status in USA. For an H-1B extension, this would typically include pay statements. For students in F-1 status, more documentation is often requested in an RFE regarding coursework, OPT or CPT employment, class attendance and the like.

In my experience, approximately 90% of H-1B RFEs will relate to one or more of the six issues described above. It is always helpful to be aware of these issues prior to filing as satisfactory documentation can often be submitted with the petition in order to avoid an RFE.

Did you had a different RFE ?  How was it addressed ? Share your thoughts ?

Thanks to Emily for writing the guest article for us. Please reach out to using her using her contact info on her blog listed below for any immigration issue, she is a highly qualified immigration attorney and can help you with your case !

————————————-About the Author————————————–

Emily Neumann practices business immigration law and is a partner in Reddy & Neumann, P.C. in Houston, TX. Neumann writes a blog on immigration law (immigrationgirl.com) and shares updates on Twitter (@immigrationgirl) and her Facebook page to help her clients stay informed of the latest news.

   

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Comments ( 145 )

  1. Arul

    Hi all,
    Can someone help me on the below question?

    Same Employer in all cases.
    2015 Mar – Applied H1B for client ABC for Texas
    2015 Mar- Selected in lottery
    2015 Sep- Got RFE for client ABC for Texas
    2016 Jan – Approved for client ABC for Texa validity June-2019 for 3 years
    ( Jan end project closed and didn’t travel for client ABC for Texas location )
    2016 May – Shared documents to my employer to file amendment for client XYZ for ILLINOIS location ( But they didn’t file, because my position not confirmed by client XYZ. So was in hold)
    ( my employer just given LCA for client XYZ document to me. But didn’t file to USCIS. Looks common LCA they use to file for others for same location for same client XYZ )
    ( I was new to H1B process, so I thought they filed and everything completed for client XYZ. They didn’t file and I don’t have case numbers)

    2016 Sep – Clinet XYZ confirmed my position and Travelled to USA for client XYZ for ILLINOIS location without file any amendment / LCA amendment( Same employer)
    2016 Sep to 2017 Apr – 8 months worked for client XYZ in ILLINOIS
    ( 8 months I have w2 for ILLINOIS and tax return documents)
    2017 Apr 8 – planned to bring family to USA and asked case number to my employer
    2017 Apr 14 – Employer mentioned we didn’t file any amendment for client XYZ
    ( Conversation happened and Employer attorney asked to return to India )
    2017 Apr – Returned back to India
    2017 Jul- Applied new exempt petition for client XYZ and got denied for job description not match ( in premium )
    2017 Nov – Again applied amendment with extension for client XYZ for ILLINOIS
    2018 Apr – Amendment with extensions for client XYZ approved validity till 2020 dec.
    2018 May – Travelled back to USA for client XYZ in ILLINOIS and still working for client XYZ.
    2018 Jun – My spouse and kid travelled to USA on H4 and starting with me now.

    Questions:
    1. my 8 months stay in USA for client XYZ in Illinois without filing amendment ( 2016 Sep to 2017 Apr ) will consider as illegal stay

    2. If my employer applied green card, my 8 months stay in USA for client XYZ in Illinois without filing amendment ( 2016 Sep to 2017 Apr ) will consider as illegal stay and will get rejected ?

    3. In next stamping or green card interview, if they ask about this 8 month stay, what can I answer to them ?

    1. administrator
      Kumar

      Arul,
      1. Well, it is hard to say without knowing the specifics of the case like how it was file, how LCA was used, etc. Only your attorney can tell. If you did not work as per terms, you violated h1b terms…
      2. It may or may not be…hard to day…USCIS may ask for details regarding pay stubs, LCA and everything to check, if it was legal or not…but hard to know..
      3. You just need to answer the truth…Talk to your attorney and get their guidance

  2. Anil

    Hi All,

    I am Anil, I have 12+ years experience in IT industry including India, US and other countries.Few days ago I got RFE for my H1B extension, once we submitted from India. USCIS has requested Previous job experience documents. What all should be submitted. Can you please advise?

    Regards
    Anil

    1. administrator
      Kumar

      Anil,
      Only your attorney can tell what is really needed and what you should submit. Talk to them and your employer and sort it out. Everything varies by case.

  3. Rashmi

    Hi Kumar,

    My previous employer started H1b process but it got RFE and is still stuck in USCIS processing from 2017. I have since then moved on to new employer and working on my H4-EAD. Now, my new employer wants to sponsor me for H1. Can they use the previous lottery selection and change employer on RFE follow up or will a new entry need to be filed for lottery?

    Thanks
    Rashmi P

    1. administrator
      Kumar

      Rashmi,
      If it was approved, you may. But, if seems it was in RFE and never got approved, then it wont work. Also, they may ask if you had H1B status at times, this is slightly grey area….

  4. Ashish

    My end client letter has mentioned about Prime vendor that Prime vendor will control my duties. Where as Prime vendor has given client letter to my company saying about the contract. Now my attorney is saying to not use end client letter as it might go against my H1. When I read the end client letter they have mentioned Prime Venodr/Prime venor’s associate Contractors. In just one line in whole letter, they have mentioned that Prime vendor will be directing my work responsibilities, according to attorney, which will go against the H1. How it is possible. I am in EVC Model,

    1. administrator
      Kumar

      Ashish,
      It is hard to say without reading the entire letter. In general, what they look for is who will give work and control your work, duties…essentially the employer – employee relationship. It cannot be that both Prime Vendor and Client can be doing it…Your attorney knows your case best and they are expert in that area. If you are not sure, try to double check with another attorney…

  5. Kumar

    Hello All,

    My H1B application got picked up with Client A and moved to Client B within same location received RFE ( Employer-Employer Relationship) and Speciality Occupation. Since I completed contract with Client A i couldn’t submit client letter , SOW , MSA, PO . Where as I’m trying to submit Client B documents in response to RFE . I’m worried about what would be the rate of approval on this sceanrio .

    Client A and Client B are within 5 miles in same state .

    Thanks,
    kumar.

    1. administrator
      Kumar

      Well, it is hard to say how USCIS will handle this as you have changed the client from A to B and it conflicts with the petition….I suggest you check with your attorney and then proceed…

  6. Pavan

    Hi,

    Two days back when i track my h1b visa status it says case was approved. Now, it says RFE issued. Did anyone faced same situation?

    Thanks

    1. administrator
      Kumar

      Online status is very much random at times, so hard to say. Check with your attorney for the physical copy of what was received.

      1. Pavan

        I got approval notice(I 797A) from my employer on sep 10th. On the same day when they issued approval notice moved my status in online to approved and very next day it went to processing again and still the same. Is this going to be issue if i go to staming now??

        Thanks

        1. administrator
          Kumar

          Online status is not reliable, what you need is physical copy. If you have the physical copy, you are fine, nothing to worry. Your attorney would get updates, if anything has changed. Keep in touch with him to know, if they got something…

  7. V Mahesh

    Hi kumar,

    If H1b declined because of any status maintaining issue, should i still do my master’s course or should i have to leave the country, is there any chance that USCIS give notice that i have to leave the country with the denial another notice to leave that because of i am not maintain status properly any chances ?? or my another course will back me up when this happens?

    1. administrator
      Kumar

      You should discuss this with DSO on this and then make a decision. You can also check with an attorney to be sure.

  8. H1bDoubt

    The H1B was approved but it was never stamped or worked. Can we still use this H1B approval for transferring to a new employer?

    1. administrator
      Kumar

      This is slightly grey area, there are few successes and few not successful as well…You can give it a shot, if an employer is willing to give it a shot.

      1. Karthik

        Hi,
        My name is Karthik.
        I have applied h1B in 2019 but it is denied yesterday. Due to some reasons I have joined my company with BSc computer science. But I have masters degree with regular.
        My employer is ready to apply H1B this year. My question is shall use my master degree this time? Will it cause any issues? Or do you want me to choose BSc computer science? Please provide an update.

        1. administrator
          Kumar

          Karthik,
          It all depends on the position you plan to apply for H1B and the SOC code they plan to use. Discuss with your attorney and take their opinion….In any case, you need to declare all your education, it is only for justifying your fit for the position.

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