Now that we are moving into the actual adjudication process for the H-1B petitions selected in this year’s lottery, you may be wondering what could go wrong at this stage. The short answer is, it depends. But, one possibility after selection in the lottery is a Request for Evidence. This occurs where the USCIS officer needs more information or clarification before the H-1B petition can be approved. Our office has stared receiving some RFEs for petitions filed in the lottery.
In my experience, approximately 90% of H-1B RFEs will fall into one or more of the six issues highlighted below. These same issues can come into play for extensions and transfers as well. 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. But, if you happen to get an RFE, these are the common reasons:
- Validation Instrument for Business Enterprises (VIBE)
- Specialty Occupation
- Availability of Specialty Occupation Work
- Beneficiary Qualifications
- Employer-Employee Relationship
- Maintenance of Status
Validation Instrument for Business Enterprises (VIBE)
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
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.
Availability of Specialty Occupation Work
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. In addition, the employer will need to document that sufficient work exists for the entire period of requested employment (typically three years). USCIS may approve a petition for less than the period requested if work will not be available for the full time requested.
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
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
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.
For a more in-depth look at the criteria for H-1B approval and what USCIS is looking for in response to an RFE, you can download my free eBook, ImmigrationGirl’s Guide to the H-1B – 7 Things to Know For Your First H-1B, at: http://immigrationgirl.com/get-your-free-ebook-from-immigrationgirl/