Common H1B RFE Reasons? – VIBE, Specialty Occupation, Petitioner Needs

In Apply H1B Visa by Guest Author34 Comments

by Emily Neumann, Attorney at Law

 After your H1B visa petition is filed and you receive the I-797 Receipt Notice with your Receipt Number, you check your online case status and find the dreaded Request for Evidence (RFE) notification: “On July 15, 2014, we mailed a notice requesting additional evidence or information in this case I-129 PETITION FOR A NONIMMIGRANT WORKER.”

Your heart skips a beat and you start to think about all the possible things that can go wrong with your immigration process. While an RFE is no walk in the park, it is often something that can be overcome with strong documentation and persuasive explanations. Before you start to have nightmares about denials, lets share the common RFEs that you can expect and what you can expect in this article.

Most Common H1B RFE (Request for Evidence) reasons.

Below are the six common RFE requests that are given by USCIS. In this article we will cover the first three and subsequent three are covered in part 2 of this  article.

  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

Validation Instrument for Business Enterprises (VIBE) – Data Mismatch?

USCIS checks all petitions filed for the H1B classification in its Validation Instrument for Business Enterprises (VIBE) system. VIBE uses commercially available data to validate basic information about organizations petitioning to employ foreign workers. In some instances, such as a newly established business, recent relocation, or change in corporate structure, the information contained in the VIBE system may not match the information provided by the employer in the H1B petition. In this case, USCIS may send an RFE asking for documentation to establish the validity of the business. This may include verification of an employer’s Federal Tax ID Number (FEIN), lease agreement for office space, quarterly wage reports, tax returns, bank statements, articles of incorporation, or the like. These types of documents should be readily available to an employer. Although it may be a hassle to respond to this type of RFE, it is relatively straight forward.

Specialty OccupationDoes H1B petition really qualify for this ?

The H-1B nonimmigrant classification is available for an alien to perform services in a “specialty occupation.” To qualify as a specialty occupation, the position must meet one of the following requirements:

(1) a bachelor’s or higher degree or its equivalent is normally the minimum entry requirement for the position; (2) the degree requirement is common to the industry in parallel positions among similar organizations or, in the alternative, the position is so complex or unique that it can be performed only by an individual with a degree; (3) the employer normally requires a degree or its equivalent for the position; or (4) the nature of the specific duties is so specialized and complex that the knowledge required to perform the duties is usually associated with attainment of a bachelor’s or higher degree. See 8 CFR 214.2(h)(4)(iii)(A).

Although the regulations are specific regarding the criteria for determining what qualifies as a specialty occupation, approval or denial often comes down to a judgment call by the adjudicating officer. The DOL’s Occupational Outlook Handbook is often consulted to determine whether the position offered qualifies as a specialty occupation.  The adjudicating officer will not look at the job title alone, but instead consider all the facts surrounding the petition like :

  • The beneficiary’s education and work experience
  •  The nature of the petitioner’s business
  •  Industry practice
  • Salary (both offered to the beneficiary and typical for the industry).

RFEs will often request a more detailed job description, documentation of other workers in the same company who also hold at least a bachelor’s degree in a specific field, job vacancy announcements used for the offered position, etc.

Needs of the Petitioner for the Services of the Beneficiary:

This issue is occasionally present in H-1B petitions filed by small businesses for aliens with professional skills not normally associated with persons employed in such a business (e.g., a petition for an accountant filed by an auto repair business or an IT consulting business filing a petition for an in-house project). USCIS may assume that the beneficiary will be employed in a lesser capacity or he or she will seek other employment immediately upon arrival. An RFE may be issued for documentation and explanations that a legitimate need exists. The employer must be able to demonstrate that the beneficiary will be employed in a qualifying specialty occupation and not in some lesser role.

 Check out the next three topics of the above in out next part of  common H1B RFEs reasons part 2 

Did you get an RFE ?   Do you know how it was addressed ?  Please 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 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 ( 34 )

  1. Krishna

    I am a commerce graduate, have over 16 years of experience which includes experience as a Software Engineer, Project Manager & Program Manager. I am here in US for 3 years, I have already done one transfer without any issues. However my recent transfer application as a Engineering Program Manager got “Speciality Occupation” RFE. Attorney is working through the documentation, however I wanted to know what are my chances to get through this RFE and get approval?

    Please suggest

  2. Sharma

    Question to Kumar or someone have knowledge..
    My huband H1B non-ad picked up in lottery. He has done his Engineering in Electronics and communication. And his H1B has filed as Database Administartor with wage level 2.
    Do you see any incompatibilty or risk in the next phase?

    Please suggest..

    1. administrator
      Kumar

      It is very hard to give a generic answer, it all depends on how the petition was filed and how your spouse’s skills were presented that justifies the role.

      1. Sharma

        Thanks Kumar for the response.
        But in the eyes of USCIS, person with Electronics and Communication background can be a database Administrator or Programmer Analyst? Is this understanding correct?
        Trying to know that this is not an unusual combination of education and specialty occupation and people with such combination can get approval. Please share.

        Appreciate your response.

        Thanks,

        1. administrator
          Kumar

          Well, it depends on the experience and job offered…in the past I have seen situations like you say and got approved…

  3. raju

    Hi
    I have received the RFE saying LCA,Speciality Occupation,Preferred Position
    what are the details which i need to furnish so that the officer believes this to be speciality occupation

  4. Mukesh

    If your H1B case is denied, then unfortunately you have to leave U.S. Depending on when you receive the denial letter in the mail, you should plan to leave the country as instructed in that letter. Please contact me if your case is denied due to specialty occupation issue. If you still have a valid project, then I would be able to refile your case with our corporation with high certainty of approval.

  5. Mrs kamaljeet kaur

    For my petition case almost 11 year has be cm.in d yr 2007 it applied my younger brother from usa.On green card base.

  6. Sam kumars

    My h1b tranfer is in process. I got rfe and content is – Additional internal information regarding the position and external support documentation. Lawyer said we need expert advice on this and it may take – 4 to 5 weeks to get their advice. How critical is this case? Can USCIS deny my case?

  7. Sam kumar

    My h1b tranfer is in process. I got rfe and content is – Additional internal information regarding the position and external support documentation. Lawyer said we need expert advice on this and it may take – 4 to 5 weeks to get their advice. How critical is this case? Can USCIS deny my case?

  8. Ravi

    In case of an RFE would like to know like what documents do an employee have to provide to the company to answer an RFE?

    I already have the required documents mentioned below but would like to know if there is something else

    1. Passport with approved H1B (from my previous employer)
    2. Past employee experience and release letters
    3. Educational documents
    4. Approved I797 (from my previous employer)

    Also one more question is I am just a graduate with 6.5 years of working experience in my domain do you think based on my education the RFE was raised? Please suggest.

    1. Ravi

      Just adding one more update:

      I am not sure why my previous employer filled for an extension and that got an RFE so i am confused to it like why did he file it in the first place

      So what if I change job and my new employer too gets an RFE? Please suggest

  9. Sanjay karthik

    Dear sir,

    My name got picked in the lottery 2016 but unfortunately my profile has gone to RFE and the consultancy guy who helped me applying visa is saying we have spend another 3000 dollars to sort this out. Is that true? why do we need to spend additional amount?? Can you please help me getting the answers please? The filling was done based on his offer letter but he believe it might fail during visa stamping if we take chances with his offer letter so he is asking me to get me an work order letter from us company. Which was requested as part of RFE and thats what he is claiming.kindly help me to understand the procedure.
    Thanks in advance.

    1. administrator
      Saurabh

      Sanjay karthik,

      I assume you paid an initial amount to the employer as well.

      The only expense now would be attorney fees to process the RFE. Again, legally employer should pay that and not you.

      Do not pay them anymore, or else you would be through good money after bad. What’s the surety that petition would get approved after this and you would receive the visa stamp?

  10. Archana

    Could any one please tell , If they got RFE and now its got approved from RFE to some other status.

    My H1B Case status is RFE since two months and employer are saying we have submitted document , any one have idea , when RFE status change for my case. 🙁

    1. Gupta

      If its premium… time takes 15-20 days to get Approve or deny
      If its regular….. It takes more than 3months or above…
      So my opinion is change it into premium…

    2. mini s

      From what I know the employer is legally obligated to pay the visa fees ( ie the fees which the USCIS charges)
      As for the attorney fees, the beneficiary (ie the employee) can be asked to pay this fee. I have been here in the USA for some time now and even big name employers ask the employees to pay up the charges and/or have hefty bonds. (ie work for 2 years or else pay $$$)

  11. Pradeep

    Hi All, I got RFE as mentioned below.
    1. Need a very detailed description of the project and his complex duties and technical skills as a Design Engineer with a percentage of time spent on each duty.
    2. Detailed note on the project along with technical requirements for each phase.

    Can anyone pls help me with sample template for above points….

  12. Ramarkrishna

    I got the below RFE

    Please describe ALL of the Associate’s job duties for the Web Developer position in detail, with specific attention to the percentage of time spent performing each duty.
    Provide a complete list of various software tools, languages and technologies used to perform the job duties.
    Provide a detailed description of the Company project, and explain what the associate’s role within the project will be.

    can you please help me how to answer these questions?

  13. JRRS_01

    I got my H1B picked and went to RFE status. My attorney says he did not receive the RFEreceipt. Now the status says


    Notice Was Returned To USCIS Because The Post Office Could Not Deliver It

    On May 20, 2015, the Post Office returned a notice we sent you for your Form I-129, Petition for a Nonimmigrant Worker, Receipt Number EAC#############, because they could not deliver it. This could have a serious effect on your case. Please go to uscis.gov/e-request to request a copy of the notice immediately. If you move, go to uscis.gov/address change to give us your new mailing address.

    My patroness says he will take care of it. But curious to know what should be done next?
    Will this have negative effect on my application approval???

    Thanks

      1. jrrs_01

        Thanks kumar for your reply.

        Then what the statement in my status mean ‘This could have a serious effect on your case.’

        1. administrator
          Kumar

          Well, because it was an RFE notice, USCIS is just reminding that it is important for your case and you need to respond, otherwise, it can impact the case processing because they are waiting for documents for further processing.

    1. RFEsucks

      I don’t think it will have a negative effect if your lawyer promptly addresses it. He should be able to get the RFE notice online as suggested. Also, if USCIS can’t deliver the notice to your office/attorney’s address, it means they will think your location/address has changed. They are saying it will have a serious effect as they don’t want you to miss responding to your RFE. Your employer/attorney should update the address ASAP.

      My case got an RFE too, so I know how sucky it is!

  14. arghya

    (1) USCIS is requesting evidence to prove that the offered position qualifies as a specialty occupation. ***CRITICAL***.

    Please describe ALL of the Associate’s job duties for the Web Developer position in detail, with specific attention to the percentage of time spent performing each duty.
    Provide a complete list of various software tools, languages and technologies used to perform the job duties.
    Provide a detailed description of the Company project, and explain what the associate’s role within the project will be.

    This kind of RFE gets approved?

        1. orrap

          I got an RFE 3 days back asking for proof that the role offered is indeed a specialty occupation. My attorney is preparing the response.

          I don’t know the complete details of the request but the above is what my sponsor has shared.

          Did you get any position evaluation or credential evaluation to answer the RFE? How did your sponsor deal with it?

          As for me, my sponsor filed a cap-exempt petition for me and it is in this process that I got this RFE.

          1. Arghya saha

            I was not part of the RFE preparation. My employer done that.

            But don’t worry if you have all documents placed you should get approval.
            I was also very worried but don’t be. Whatever ur employer or attorney asking please provide them.

  15. Peter

    Emily is an amazing lawyer. I am following her on twitter and her blog. She is well informed about the process and gives plenty of information on how to navigate this process without the immigration jargon. Great read!

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