H-1B RFE: Common Reasons and Solutions

This article provides a detailed explanation of the common reasons for H-1B RFEs and how to handle them.

1. Speciality Occupation

This is the most common reason for receiving an Request for Evidence (RFE). Applicants with liberal arts or business degrees often face this issue, as many of these majors do not have directly related job positions. To meet the specialty occupation requirements, you must have a bachelor's or higher degree relevant to your job. While obtaining a bachelor's degree is straightforward, defining its relevance to your job is crucial. USCIS typically considers the following:

• The Department of Labor's Occupational Outlook Handbook (OOH) description of the position

• Industry standards for similar-sized companies

• The company's historical requirements for the position

• The unique complexity of the position within the company

Solution: Expert Opinion Letter

In most cases, the RFE notice from USCIS outlines specific reasons why your position does not qualify as a "specialty occupation." You will need to provide evidence to counter these claims. An effective approach is to submit an expert opinion letter, in which an industry expert asserts that your position meets the specialty occupation criteria. The key is to demonstrate the uniqueness and complexity of your role, and how you have made indispensable contributions to the company. Based on past experience, an expert opinion letter is one of the most powerful responses to this type of RFE.

 

2. Maintenance of Status

This type of RFE aims to examining your past history in the U.S., such as your previous non-immigrant statuses and whether you complied with the relevant regulations while on those statuses.

For example, if you previously held B-1/B-2 (business/tourist) or H-4 dependent visas, USCIS will check if you adhered to the restrictions of those visas. B-1/B-2 visa holders are not allowed to work in the U.S. If it is discovered that you worked illegally while on a B-1/B-2 visa, it will be considered a violation of visa conditions.

Most international students applying for H-1B have only held F-1 status in the past. A common issue with maintaining F-1 status is working on an F-1 visa. F-1 is a full-time student visa, so if you have used CPT or OPT, you must provide additional evidence that you obtained the legal work authorization based on regulations. You must also demonstrate that the work was within the permitted hours and conditions set by USCIS.

Solution: Gather Evidence in Advance

If you have previously worked under F-1 status, you will need to gather the following documents to support your H-1B application:

Provided by School	Provided by Employer	Provided by the Student
RFE Support Letter Attendance Report CPT Corporate Agreement Enrollment Verification Official Transcript Academic Record Tuition Record	Salary Information Job Description Offer Letter	Copies of all I-20s Proof of Class Attendance: Transportation receipts, parking tickets, fuel receipts, flight or train tickets, etc. Records of book purchases and other educational expenses. Syllabus of each course Assignments, notes, and study plans Archived emails about course information Address Proof: Utility bills, bank statements, rental agreements, etc.

3. Employer-Employee Relationship

This type of RFE aims to check whether your relationship with your employer is genuine. If the relationship is genuine, there is no need to worry about it. As long as your employer is willing to cooperate and provide proof, it is very easy to overcome.

Solution:

Provide documentation of your employment contract. If you have already worked for the employer during your OPT period, you can provide evidence showing that the employer supervised your work.

 

4. Beneficiary Qualifications

If your degree is so versatile that it applies to many jobs, your application may be scrutinized. This often occurs alongside the first reason, leading to a dual challenge, commonly faced by applicants with liberal arts and business degrees. The response strategy is similar to the first.

Solution:

Analyze thoroughly the courses you have taken and your past work experience, especially those related to the job, to prove your qualifications for the position. You can also provide an expert opinion letter to support your skills and qualifications.

 

5. Availability of Work (in-house)

This examines whether the company really needs the job position and if there is enough work to employ the H-1B beneficiary for three years. This issue typically arises when the employer is a small company and your professional skills do not fully align with the company's business.

Solution:

Provide the company's business plan, information about other employees in the same position, and the company's current business projects to prove the necessity of the position.

 

6. Licensure Requirements

For certain professional positions, such as engineers, accountants, or architects, USCIS may have licensure requirements. If your position requires a license, you must obtain one.

Solution:

If your job requires specific licenses, ensure you have the appropriate license for your position.

 

7. Company Address

Usually, this occurs because the company's address information in USCIS's database is not updated. It is the simplest and least concerning RFE.

Solution:

Have the company update the information and provide the necessary documentation.

 

8. LCA Corresponds to Petition

When applying for an H-1B visa, an approved LCA from the Department of Labor is required. If the job category, wage level, company address, or other information on the LCA does not match the information in the petition, an RFE will be issued.

Solution:

This is similar to the previous issue and relatively easy to address. You can explain the discrepancies to USCIS and provide a coherent explanation for the inconsistencies.

 

9. Availability of Work Off-Site

During the H-1B application process, especially for petitions from outsourcing companies, a common issue is the possibility of the applicant working outside the U.S. USCIS may issue an RFE regarding "off-site work opportunities" for foreign employees working remotely. This issue is particularly prevalent among Indian outsourcing companies (ICCs), as their employees often work at client sites rather than the main office.

Solution:

If you receive this type of RFE, work with an attorney and your company to gather sufficient evidence proving that your employment relationship is long-term. This may require providing documentation of the company's work plans and demonstrating that there are enough tasks to require your services.