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.
- Validation Instrument for Business Enterprises (VIBE)
- Specialty Occupation
- Needs of the Petitioner for the Services of the Beneficiary
- Beneficiary Qualifications
- Employer-Employee Relationship
- 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 Occupation – Does 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.